On Motion for Rehearing.
Section 4 of the Act of January 20, 1840, regulating marital rights, is as follows:
“Be it further enacted, that all property which the husband or wife may bring into the marriage except land_ and slaves and the wife’s paraphernalia and"¿11 the* property acquired during the marriage, except such land or slaves, or their increase, as may be acquired by either party, by gift, devise, or descent, and except also the wife’s paraphernalia, acquired as aforesaid, and during the time aforesaid, shall be the common property of the husband and wife, and during the coverture may be sold or otherwise disposed of by the husband only; it shall be first liable for all the debts contracted by the husband during the marriage, and for debts contracted by the wife for necessaries during the same time; and upon the dissolution of the marriage, by death, after the payment of all such debts, the remainder of such common property shall go to the survivor, if the deceased have no descendant or descendants; but if the deceased have a descendant or descendants, the survivor shall have one half of such common property, and the other half shall pass to the descendant or descendants of the deceased.” Section 4, p. 178, vol. 2, Gam-mel’s Laws.
*336In 1S48, this act was amended to read as follows:
“Be it further enacted, that all property, both real and personal, of the husband, owned or claimed by him before marriage, and that acquired afterwards by gift, devise, or descent, as also the increase of all lands or slaves thus acquired, shall be his separate property. All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift, devise, or descent, as also the increase of all lands or slaves thus acquired, shall be the separate property of the wife: Provided, that during the marriage, the husband shall have the sole management of all such property.
“Be it further enacted, that all property acquired by either husband or wife, during the marriage, except that which is acquired in the manner specified in the second section of this act, shall be deemed the common property of the husband and wife, and during the cover-ture may be disposed of. by the husband only; it shall be liable for the debts of the husband, and for the debts of the wife, contracted during the marriage, for necessaries; and upon the dissolution of the marriage, by death, the remainder of such common property shall go to the survivor, if the deceased have no child or children; but if the deceased have a child or children, the survivor shall be entitled to one-half of said property, and the other half shall pass to the child or children of the deceased.” Sections 2, 3, pp. 77, 78, vol. 3, Gammel’s Laws.
The title to the land in controversy is controlled by the act of 1840, and as a proper construction of that act, appellees advance the following propositions:
“Under the law in force at the death of Cyrus S. Aiken, the land in question descended to his wife as a community property, without regard to the character of the original consideration paid by Aiken to Warren. And the legal title not only apparently but in fact vested in Mildred Aiken. Under the law of 1840, regulating marital rights, all the property acquired during marriage passed, upon the dissolution of marriage by death, to the survivor, if the deceased left no descendant or descendants. Therefore, the legal title to the property in controversy passed to Mildred Aiken, upon the death of her husband, Cyrus S. Aiken.”
Their position is well stated in the following excerpts from their written argument:
“This court is composed of ‘officers of the government,’ and, like appellees, who were ‘people dealing with such matters,’ must necessarily, in determining the question of heirship of the property acquired during the marriage of Cyrus S. Aiken and his wife, Mildred Aiken, follow the statute which designated who, at the death of Cyrus S. Aiken, would inherit that kind of property, to wit: Land acquired during his. marriage. And, if the Supreme Court of Texas knew the law, and if Justice Williams was capable of stating what they determined to be the law, then the members of this court, as ‘officers of the government,’ and appellees, ‘dealing with the title to land situated here, were required to take notice of no other laws,’ but, in determining where the title to the land here involved, acquired during the marriage of Cyrus S. Aiken and Mildred Aiken, went upon the dissolution of such marriage by the death of Cyrus S. Aiken, this court must be controlled by the statute above quoted, just as appel-lees had a right to absolutely rely thereon.
“Every condition necessary to fulfill and literally satisfy every call in the description of this land, as the property designated in such statute is admitted, and by such statute the Congress of Texas said, as effectually as if they had said it in these express words: ‘The land acquired from David O. Warren by Cyrus S. Aiken, during his marriage to Mildred Aiken, not having been acquired by him either by gift, devise, or descent, shall go to the survivor of such marriage, to wit, Mildred Aiken, upon the death of Cyrus S. Aiken, since the deceased, Cyrus S. Aiken, has left no descendant or descendants.’
“This is, without any possible question or room for quibbling, the very letter of such statute, the act of Congress of January 20, 1840. It expressly applied to this property, and, as said by Justice Brown, quoting the language of Chief Justice Stayton in regard to Legislative Acts: ‘Whatever may seem to be its omissions, courts cannot, on such consideration, by construction restrain its operation.’
“And this law operated to vest the title to this property, acquired during marriage, in Mildred Aiken, and, if a title, vested by the express terms of a legislative enactment, is not a legal title, there is no meaning in words. A title conferred by the express terms of a statute is a title ‘provided for by statute,’ is it not? Such a statute is operative on the title to property, where the characteristics of such property fulfill its every requirement, to confer a right which ‘may be enforced in a court of law,’ is it not?
“Our Supreme Court in Patty v. Middleton, 82 Tex. 593, 17 S. W. 911, said: ‘Such a title is a legal title because it is such evidence of right as may be enforced in a court of law, and this is so because it is the evidence of ownership required by law and provided for by statute.’
“Therefore, if the law, embodied in the statute of 1840, said the title to the very property involved should go to Mildred Aiken, as the survivor of the marriage with her husband, Cyrus S. Aiken, 'then the title, vested by law, is a legal title, is it not? If not, why not?
“Ownership of the purchase money which pays for land can, per se, give ’rise to nothing but a resulting trust, which is founded in equity, and is only an equitable title. It is not ‘such evidence of right as may be enforced in a court of law,’ but only in a court of equity (except under our statute which expressly recognizes equitable title as such). ‘This is so because it is [not] the evidence of ownership required by law and [or] provided for by statute where lands are to be conveyed.’ Patty v. Middleton, supra.
“If the separate money of Cyrus S. Aiken paid for this land, the right arising by reason of that extraneous fact — the equitable title — • the resulting trusts so.arising — might-pass, under the general statute of descent and distribution, to his collateral kindred, as heirs to such a right. But the legal title to this land passed to his wife, who was specifically designated to be his heir as to this land, acquired *337during their marriage, by the express terms of the statute specially dealing with property acquired during marriage, which statute alone provided how, and to whom, such property should pass ‘upon the dissolution of marriage by death.’ Can this conclusion be avoided? If so, how?”
[9] We do not concur with appellees in their construction of the act of 1840. The conveyance to Cyrus S. Aiken vested in him the legal title to the land in controversy. This was clearly held by the Supreme Court in Hill v. Moore, 62 Tex. 610. And, in Stiles v. Japhet, 84 Tex. 91, 19 S. W. 450, discussing a title acquired under the act of 1840, it was said:
“We concede that, under the more recent decisions of the Supreme Court, this conveyance did have the effect of conferring what is technically termed the legal title as contradistin-guished from the equitable, upon Mrs. Stiles”— citing Patty v. Middleton, 82 Tex. 586, 17 S. W. 909; Edwards v. Brown, 68 Tex. 329, 4 S. W. 380, 5 S. W. 87; Hill v. Moore, 62 Tex. 610.
[10] In buying the land, as Aiken paid for it with his separate estate, appellees concede in their argument, which we have above quoted, that he, in fact, acquired the equitable title. It follows then, under the' facts of this case, that the deed to Aiken vested in him both the legal and equitable title. But as appears from appellees’ propositions, quoted above, they strenuously contend under the act of 1840—
“that the legal title to the property in controversy passed to Mildred Ailrin upon the death of her husband, Cyrus S. Aikin.”
The original act uses the words, “acquired by either party,” referring to husband and wife, and the' amendment uses the words “acquired by either husband or wife.” Both acts excluded from their provisions all property acquired “by gift, devise, or descent.” Because the land in question was not acquired by “gift, devise, or descent,” they argue that it came within the terms of the act, and, therefore, descended to the wife. Their argument is:
“Every condition necessary to fulfill and literally satisfy every call in the description of this land, as the property designated in such statute is admitted, and by such statute the Congress of Texas said, as effectually as if they had said it in these express words: The land acquired from David O. Warren by Cyrus S. Aiken during his marriage to Mildred Aiken, not having been acquired by him either by gift, devise, or descent, shall go to the survivor of such marriage, to wit: Mildred Aiken, upon the death of Cyrus S. Aiken, since the deceased, Cyrus S. Aiken, has left no descendant or descendants.”
Appellees have not correctly construed the act of 1840 on this point.
In Edwards v. Brown, supra, the Supreme Court fully and correctly deilned the meaning of the word “acquired,” and described and named — not the property that was excluded by the act — -but all the property that was included in its terms, saying:
“The rule of decision laid down in the cases cited and universally adopted in our state is inconsistent with the idea that the words ‘acquired by either husband or wife,’ are to be construed as having the same meaning as the words ‘conveyed to either husband or wife.’ It seems to us, therefore, that, in framing this statute, the Legislature had in view the consideration by which the property should be acquired, and did not intend to provide that a conveyance made either to the husband or wife singly during marriage shall pass the legal title of the estate to both. * * *
“We conclude that the object of our lawmakers, in enacting the statute we have had under consideration, was to provide that all property acquired during the marriage by the labor of either husband or wife or the joint labor of both, as well as the increase and proceeds of such property, should belong beneficially to both, although the legal title should be conveyed to one only; and that they did not mean that the legal title should be in both the husband and wife, when the property was not conveyed to both in accordance with the provisions of our statute regulating conveyances.”
Therefore, as this land was not acquired by the labor of either Cyrus S. Aiken or his wife, or the joint labor of both, and was not the increase and proceeds of property so acquired, it was not included within the terms of the act, and was not covered by its provisions as to descent and distribution, but was the separate property of Cyrus S. Aiken, and descended under the provisions of the act approved January 28, 1840. entitled “An act to regulate the descent and distribution of intestates’ estates.” 2 Gammel’s Laws, p. 306.
Cyrus S. Aiken died on the 10th day of January, 1843, intestate, leaving neither father nor mother nor children. His separate estate, including the property in controversy, descended, under section 5 of the above-cited act, reading as follows:
“If there be neither father or mother, then the whole of such estate shall pass to the brothers and sisters of the intestate, and to theii descendants, or to such of them as there be.”
Now, as the statutes of descent and distribution are as “effective to convey the legal title as is a deed” (Sanborn v Schuler, 86 Tex. 116, 23 S. W. 641), it follows that the legal and equitable title to the land in controversy descended to the brothers and sister of Cyrus S. Aiken, as fully and completely as if he had conveyed it to them by regular deed during his life. As it was his separate property, and as the deed to him vested in him both the legal and equitable title, if Judge Stayton was correct in the proposition we have just quoted, neither the legal nor equitable title descended to the wife, and she inherited no interest in the land, benefi*338cial or otherwise. But, as the land was conveyed to Cyrus S. Aiken during coverture, and there was nothing in the deed of conveyance to indicate its separate character, presumptively, it was community property, and on his death Mrs. Aiken was invested with the apparent legal and equitable title, that is the apparent beneficial interest in the land. Sanborn v. Schuler, supra.
When Marshburn bought the wife’s apparent title, if he was ignorant of the fact that the land was the separate property of the husband, he must be protected in his title. Stiles v. Japhet, supra. But he bought nothing. His deed ' conveyed him no title — not even the naked legal title. Burnham v. Hardy Oil Co., 108 Tex. 555, 195 S. W. 1139. He can recover only by resorting to equity. And equity can give him the title only on an affirmative showing that he was a bona fide purchaser for value, without notice of the claim now asserted by appellants. As we said in our original opinion the burden rested on him to show the necessary facts to make his title. Shall the legal title, descending under the act of January 28, 1840, be inferior in probative force to the apparent title descending under the act of January 20,1840? Shall the substance, that is the true legal title, be of less dignity than the shadow, that is the apparent legal title?
Appellants attack our conclusion that:
“They rested under the same burden imposed by law on a junior purchaser against a prior unrecorded deed.”
They say our citation of Sanborn v. Schuler does not support that proposition. We think it does. In that case, discussing a title on all fours with the title we are discussing, Judge Stay ton said:
“In so far as the right of the bona fide purchaser to protection is concerned, the operation of the statute of descent and distribution on the apparent title was to pass that to Mrs. Deal, as fully as would a conveyance by one having-the apparent superior right pass that apparent right even to a purchaser with notice of the superior right of some third person; so that she, as well as a person holding apparent title by deed, could make a conveyance to a bona fide purchaser that would be protected against an unknown but superior right to' that held' by the vendor.”
When making his' illustration, Judge Stay-ton must have had reference to a junior pur-, chaser against a prior unrecorded deed.
Again, in Edwards v. Brown, Judge Gaines recognized the principle we are contending for and illustrated it by the case of a junior purchaser against a prior unrecorded deed.-ile said:
“But it may be further remarked that it does not follow that, because one may have the legal title, another may not acquire a superior equity as a bona fide purchaser. The holder of the legal estate by an unrecorded deed cannot pre-’ vail over a purchaser from his grantor, who has paid value without notice of the unrecorded conveyance.”
Judge Head announced the same proposition in Barnes v. McArthur, 4 Tex. Civ. App. 71, 22 S. W. 770:
“Appellant contends that, notwithstanding the land may have been the separate property of Mrs. McBride, yet, inasmuch as all property acquired by purchase during marriage is presumed to be community property, whether the deed be taken in the name of the husband or wife, he should be protected, as an innocent purchaser, by reason, of his deed from the husband; but, as will be seen from the conclusions of fact, there is no evidence in the record to show that appellant paid .a valuable consideration, and we think this necessary in order to enable him to acquire Mrs. McBride’s land under a deed from her husband alone. McBride v. Banguss, 65 Tex. 174; Parker v. Coop, 66 Tex. 111; McKamey v. Thorp, 61 Tex. 648; Stoker v. Bailey, 62 Tex. 299; Kirby v. Moody, 84 Tex. 201, 19 S. W. 453. We find no error in the judgment rendered by the court below, and it is therefore, in all things, affirmed.”
While the point was not necessary for the decision of the case, in Railway Co. v. Durrett, 57 Tex. 53, Judge Stayton recognized the same proposition:
“It is urged that, as the deed was made to Mrs. Durrett during coverture, the deed from the husband, in the absence of notice to the appellant that the land was the separate property of the wife, must be effective. The pleadings of the appellant were not such to raise the question whether it was a purchaser for a valuable consideration without notice of the right of Mrs. Durrett; and the court did not err in sustaining the exception to the fourth paragraph of the answer.” See also Burnham v. Hardy Oil Company, supra, 168 Texas, last paragraph, page 563.”
Our conclusions on the other propositions raised by appellees are fully reflected in the original opinion.
Appellees have called our attention to the fact that we reversed this case -as to all the league, while only a part of it is involved in this appeal, the balance being conceded to them. They are right in this contention. We, therefore, limit the reversal of this case to that percentage of the league claimed by appellants.
We cannot close this opinion without expressing to counsel for both parties our deep appreciation of the careful and able manner in which the motion for rehearing has been prepared and argued. We have given these arguments' our most painstaking consideration, and each member of this court has carefully reviewed the original opinion, and, to the best of our ability, analyzed the additional authorities cited on rehearing.
We are unanimously of the opinion that the motion for rehearing should be overruled, except as herein indicated, and it is so ordered.