On Rehearing.
Counsel for appellant, in a very able argument, earnestly contends that the opinion of the Court of Civil Appeals, Third District, on motion for rehearing on the former appeal of this case, was obiter dicta, and that that' part of it dealing with the question of limitation was erroneous, and that we were in error in following said opinion. Said opinion may be obiter dicta; still, under the rule of stare decisis, we think it was a part of the law of this case, and it was our duty to follow it, unless clearly wrong. However, we did not follow said opinion until after we had considered the question and examined the authorities cited, and satisfied ourselves that said holding was correct'. We have again carefully considered this phase of the case. Bearing in mind that on June 10, 1915, Cavitt and Amsler entered into a contract, by the terms of which Amsler agreed to convey to Cavitt 50 shares of the mill stock in exchange for $2,000 and a half interest in a house and lot in McGregor, said deal to be closed as of said date, it is apparent this contract did not put title in Cavitt to the stock, nor in Amsler to the $2,-000 and the real estate. Amsler refused to go forward and complete the trade, and on June 16, 1915, Cavitt brought suit No. 22555 for specific performance. This suit was tried on December 20, 1916, and judgment rendered, decreeing specific performance, but this judgment never became final until about January 20, 1920. Prior to the rendition of this *142judgment, Cavitt -had a contract for the stock, but be bad no title to tbe stock, and did not own any stock. Tbe judgment of December 20, 1916, decreed to Cavitt title to tbe' stock, but this judgment was appealed from and never became final until about January 20, 1920, so Cavitt never bad title to tbe stock until said date, and then bad it by virtue of said judgment, wbicb related back and gave bim title as of tbe date of tbe contract.
Tb'is being true, it is evident Cavitt could not say be had any title to tbe stock until this judgment became final. As a matter of fact, he did not have. It is equally evident be could not prosecute a suit for dividends against either tbe milling company or Amsler until be was in position to show title to tbe mill stock, and this be could not 4o until after the judgment awarding Mm tbe stock became final in January, 1920, about a month, before this suit was filed. Tbe pendency of suit No. 22555 for tbe recovery of said stock, or rather tbe necessity o.f having to bring said suit and prosecute same through all the courts of the state in order to compel Mr. Amsler to perform bis contract, prevented the running of limitation against an action to recover dividends on said stock, from' June 16, 1915, the time same was filed, to. the time tbe judgment in said cause became' final in 1920. See Cavitt v. Amsler (Tex. Civ. App.) 242 S. W. 249, and cases there cited. To hold otherwise would permit Amsler to take advantage of bis own wrong in refusing to carry out bis contract and forcing Cavitt to resort to. the courts. And we think it is alsq true that the injunction, evidenced by tbe docket entry in. cause Ho. 2S679, of date July 14, 1917, prevented the running of the statute, even though not pleaded by appellee.- Appellant bad pleaded limitation — the burden was upon bim to prove it. Among other evidence introduced by bim was. said injunctive order, which affirmatively refuted his plea óf limitation.
We do not think tbe cases cited by appellant are applicable to the facts here presented. In the case of Davis v. Andrews et al., 88 Tex. 524, 30 S. W. 432, 32 S. W. 513, cited by appellant, an injunction was issued and served, restraining a trustee from selling real estate under a deed of trust. Tbe beneficiary in the deed of trust was made a party defendant, and some .6 or 7 years later filed a cross-bill on bis notes and sought a foreclosure of bis deed of trust lien to secure said notes, to wbicb a plea of limitation was interposed by the debtor, and sustained,' and properly so. The way was open from the. time of tbe issuance of tbe injunction for tbe beneficiary in said deed of trust to file such cross-bill and prosecute it to final judgment, foreclosing bis deed of trust lien.
In the case of Bowen v. Kirkland, 17 Tex. Civ. App. 346, 44 S. W. 189, cited by appellant, an only heir to an estate brought a suit to set aside an administration on said estate and to have tbe administrator dismissed, and, during the pendency of such suit, said heir sold and conveyed a part of tbe real estate, tbe purchaser going into possession. A good many years afterward the suit against the administrator was decided in bis favor, and be then brought suit against tbe purchaser from the heir, and said purchaser pleaded limitation. The administrator contended limitation did not run against bim by reason of tbe pendency of tbe suit by tbe heir to have him dismissed, but the court held, and rightly so, that limitation was not suspended, in that the proceedings .appointing bim administrator could not be attacked collaterally, and the pendency of the suit by tbe heir to remove bim was no impediment to bis prosecuting a suit as such administrator to recover said real estate.
All the cases cited by appellant, we think, are distinguishable from this case. In this case, appellee could not. prosecute a suit for dividends against either the milling company or Amsler until be was in position to prove tbe ownership of the stock in litigation, and be was not in position to make such proof — • in fact, he was not tbe owner — -until, the judgment-in cause No. 22555 became a final judgment.
We overrule appellant’s motion for a rehearing.