On Motion for Rehearing.
[4] It is contended in the motion for rehearing that judgment for $1,000 in behalf of appellant was not justified because it is urged that counsel for appellant in his oral argument on the hearing abandoned the assignment presenting this question in his brief. The court has no recollection that any such admission as here claimed was in fact made by counsel for appellant. It cannot be expected, in the multiplicity of our duties, that we could recall all that may occur in oral argument upon the hearing; and in the absence of any affirmative evidence showing, or tending to show, that any such admission was in fact made, we are not disposed to reverse our holding upon this question.
[5] It is further contended in said motion that appellant is precluded from asserting that title to the land was not in appellee, because he was a party to cause No. 6,200, in which a judgment by agreement was entered, that appellee did have title to this land, the proceedings in said cause No. 6,200 having been pleaded in this case. We think appellant is not estopped from asserting the contrary, for the reason that said judgment was not rendered until long after the time that by contract appellee had bound himself to furnish a good and sufficient title to the land, and long after the time when the same was so tendered, and should not be held to relate back and prevent appellant from urging a defense that in fact appears to have existed at the very time the deed should have been made.
[6] Second, because the chief object of said suit was merely to foreclose certain vendor’s lien notes upon the land, and was never intended to establish the title to said land as against the heirs of Green De Witt, the original grantees thereof, and the agreement that is shown to have been signed by defendant, and upon which judgment was rendered in said case did not recite that Thig-pen had title against all persons, but only that title was in Thigpen as against the parties to said suit. The heirs of Green De Witt not being parties thereto, of course were not bound thereby, and their rights were not determined therein, for which reason we did not deem it necessary to refer to and discuss in our original opinion the effect of said agreement or judgment in cause No. 6,200. [7] While it is true as claimed by appellee in his motion for rehearing that if this was an action instituted against him for land, and he had pleaded and shown title by limitation, then, in order for the plaintiff in such a case to avoid the effect of such defense, the burden would rest upon the plaintiff to show that such limitation was *1185not effective as against him, because he was laboring under such disability as to prevent the running of the statute of limitation as to him. But such rule, we think, is not .applicable in a suit brought for specific performance, for the reason that the plaintiff, in that character of a suit must tender a merchantable title; and, even if a limitation title could be regarded as such, then the burden is upon the party offering it, not only to show that he had limitation, but likewise that there were no parties laboring under disabilities who might, in tlje future, lay claim to the land. See McLaughlin v. Brown, 126 S. W. 292; Maupin’s Marketable Title, p. 740; Bowles v. Umberson, 101 S. W. 842; Moling v. Mahon, 86 S. W. 958; and Greer v. International Stock Yards Co., 43 Tex. Civ. App. 370, 96 S. W. 82.
While not controverting the propositions of law contended for by appellant on some of the other questions urged in the motion for rehearing, still, we do not think the doctrines announced therein are applicable to the facts as shown by the record in this case, for which reason said contentions are regarded as without merit; and, finding no reason to change our views heretofore expressed with reference to the merits of this appeal, the motion for rehearing is in all things overruled.
Motion overruled.