On Motion for Rehearing.
In our original opinion we held that this cause was before this court alone upon the appeal of R. E. Boese, a nominal party only, who had no interest in the subject-matter of the litigation, being joined in the suit only pro forma as the husband of plaintiff Ethel Boese. This holding was upon the theory that the appeal bond filed in the trial court was the bond of R. L. Boese only, and that it did not have the effect to perfect the appeal in behalf of the other plaintiffs, to wit, Ethel Boese, Ruth Vinton, and Mart Massey. Having reached such conclusion under the authority of Hawley v. Whitaker, 33 S. W. 688, we refused to review the action of the trial court at the instance of R. E. Boese.
The plaintiffs Ethel Boese, Ruth Vinton, Claude Vinton, and Mart Massey, as well as R. L. Boese, have filed their motion for rehearing, and therein insist that we erred in our said holding and that said appeal bond was sufficient to perfect the appeal of all of said parties.
While we are still inclined to the views expressed in the original opinion, we are not without some doubt as to the correctness of same, and therefore have concluded to grant the motion and consider the assignments of the parties, who will hereinafter be referred to as appellants. Before beginning to discuss the assignments, however, we make the following statement in addition to the statement made in the original opinion:
The trial court, before whom the cause was tried without a jury, found as facts the following :
That by said suit No. 21547 James E. Massey sued M. L. Womack, administrator of the estate of H. H. Massey, deceased, with will annexed, and the children of the second and third wives of said H. H. Massey and Mrs. Fannie Massey, his surviving widow; said children and surviving widow being the devisees under the will of said H. H. Massey. That said suit was for the purpose of having set aside to him, James F. Massey, all the interest his deceased mother, the first wife of H. H. Massey, had in tho property held by his father, H. H. Massey, at the time of his death, which said interest he inherited as the sole heir of his deceased mother. That in said cause a decree was duly entered setting aside to said James F. Massey said interest and setting aside the balance of said estate to the defendants as property of the estate of H. H. Massey, deceased. “That thereafter, on November 20, 1896, in a suit No. 2596, styled M. L. Womack, Administrator, et al., v. Eugene Massey et al., in the district court of Burleson county, Tex., the said M. E. Womack, as such administrator, sought to have partitioned and set aside for the estate as against the said Eugene Massey et al., children of the second wife of said H. H. Massey, deceased, the interest of the estate in said land from the interest of the defendants, as heirs of their mother, the said second wife of said H. H. Massey, deceased. That a decree was rendered in said coux-t establishing the interest of the parties, and decreeing the land incapable of partition, and ordering it to be sold by a special commissioner, E. B. Bell, and that thereafter the said E. B. Bell did make a sale of the land in controversy, 178% acres, described in the pleadings, and made his report to the court, in which he showed that he had sold said 178%-acre tract of land on December 4, 1896, to George W. Price, as appears by the Deed Records of Burleson county, vob 15, p. 105, conveying said land. That the proceeds of such sale were partitioned in accordance with_ said decree, and the said M. L. Womack l'eceived as administrator the portion allotted by the court to the said estate of H. H. Massey, deceased, and that he administered the same in accordance with his final account, which was approved, as aforesaid, by the county court of Burleson county.”
He further found that said Price paid the cash for said land, as appears in said court proceedings in said last-named suit; that through mesne conveyances from the said P'rice the defendant O. V. Massey is now the owner of said land, and that he, and those under whom he claims, have been in possession of said land, under deeds duly recorded, from the date of the purchase of the said G. W. Price from E. B. Bell, special commissioner as aforesaid, for more than ten years prior to the institution of this suit; that the administration with the will annexed of the estate of H. H. Massey, deceased, was duly closed and distributed in the probate court of Burleson county on or about the 28th day of August, 1898; that said H. H. Massey, deceased, was .married three times, and had three sets of children, the last set being the plaintiffs in this suit.
As conclusions of law the court found:
“Under my conclusions of law in this case I am of the opinion that the will of the said H. H. Massey, deceased, gave to the last wife, who was the mother of the plaintiffs herein, her part interest in the undivided half of his old homestead, which is the land in controversy, and which is the same land that was sold by the decree of the district court in cause No. 2596, styled M. L. Womack, Administrator, v. Eugene Massey et al.
“The contention of counsel for plaintiffs before the coui't was that the decree in the first named 'cause, J. F. Massey v. M. L. Womack et al., No. 2547, in the district court of Burleson county, after vesting the title to a certain property in the plaintiff, as the mother’s interest, then vested an absolute title to an interest in the plaintiffs in this cause. In my judgment it was a simple suit brought by said J. F. Massey to pai'tition and set aside that part of the land inherited by him from his mother, who was the first wife of the said H. H. Massey, and that the administrator of the said H. H. Massey, together with all the heirs and *124children, were made defendants for the purpose of having a final settlement of the plaintiffs’ interest. The pleadings and the judgment in said cause being construed, it is clear to my mind that there was no intention of vesting any title in the plaintiffs in this cause, but the purpose of the suit, and the decree rendered therein, was to merely turn over to the administrator that part which the plaintiff in that suit did not claim, and that it was thereby placed in the hands of said administrator to be administered in the probate court of Burleson county. That the district court would have had no jurisdiction to have vested any of the title to the land in the plaintiffs in this suit, as against such administrator; the administrator having full charge and control of the estate to administer the same.
“I am of the opinion that the second suit filed by said M. L. Womack, as administrator, was merely for a like purpose, i. e., to separate and partition the property that really belonged to the estate of H. H. Massey, deceased, from the interest of the children of the second marriage that they inherited from their mother, and that he had the authority under the law to bring such suit and for such partition made, in order that he could properly administer that portion of the property that belonged to the estate of the said H. H. Massey, deceased. As the property was held incapable of partition and sold under the decree of the court, the proceeds of such sale that belonged to the estate of H. IT. Massey, deceased, were properly decreed to be paid over to the said M. L. Womack, as administrator of the estate of IT. H. Massey, deceased, and to be administered by him in the probate court. Said estate has long since been closed in said court, the administrator accounting for all moneys received, and for the money received from the sale of this property, and it was distributed by the court, in that case, and as a finality.
“I see nothing from the evidence in this case that would vest title in the plaintiffs, for certainly all the land belonging to the estate of II. H. Massey, deceased, was subject to his debts, regardless of any of the devisees in said will of said H. H. Massey, deceased. The district court was the only court that had the power to partition and separate the interest of the estate of IT. IT. Massey, deceased, from the interest of the children of the second wife, and, having jurisdiction to do so, its decree stands, and everything litigated therein is a finality, and cannot be collaterally attacked. Inasmuch as the district court, in the last-named case, had the jurisdiction and the authority to order the land sold, and to turn over the proceeds belonging to the estate of IT. H. Massey, deceased, to his administrator, M. L. Womack, the said M. L. Womack was the only person that could be authorized to receive such money to be distributed and disbursed in accordance with the orders of the probate court of Burleson county, which had jurisdiction over such estate.
“Even if the will in question had specifically devised to the plaintiffs herein the land in controversy, still according to the law it was subject to the payment of the debts, and was not exempt property; and the sale under the decree of the district court divested the estate of H. H. Massey, or any devisee of his estate in his will, or any right, title, or interest that they might have by reason of any bequest in said will. If the will of H. H. Massey, deceased, had devised the whole of his interest in this tract of land in controversy to the plaintiffs, it would have been held by the administrator with the will annexed subject to the debts of the decedent, and when that land was sold under the order of the district court for partition all of their title in and to the same would have been divested out of them and out of all of the other parties claiming thereto, and vested in George W. Price under the deed from E. B. Bell, as special commissioner, and the proceeds of such sale would have been what the plaintiffs in this case have looked to — and not the land.”
With this statement, together with the statement in the original opinion, we will now discuss and dispose of the contentions of appellants.
By assignments 1, 2, 3, and 4, grouped in appellants’ brief, it is, in substance, insisted that the district court of Burleson county was without authority to entertain and try said cause 2596, and render and enter the decree and orders it did so render and enter therein, and such decree and orders are void, and that the deed executed by E. B. Bell to G. W. Price, by which he purported to convey the land involved in this suit to said Price, is void and of no effect, and consequently said deed did not have the effect to divest plaintiff of title to said lands and vest the same in said Price: First, because by the decree in cause No. 2547, James F. Massey v. M. B. Womack, Administrator, et al., the land involved in this suit was decreed to plaintiffs and their mother, Mrs. Fannie Massey, and none of them were in any manner made parties in said cause No. 2596, and hence the decree entered therein in no way affected their rights in and to said land accruing to them by virtue of said decree in said cause No. 2547; second, because at the time the decree in cause 2596 was entered an administration was pending upon the estate of H. H. Massey, deceased, in the county court of Burleson county, Tex., which said court had exclusive jurisdiction of all proceedings on the part of the administrator and legatees of H. H. Massey, deceased, to partition the estate of said H. IT. Massey or any part thereof, and the district court in which said decree was entered was without jurisdiction to entertain said suit and enter said decree or to make any orders therein affecting said estate, and therefore said decree is void and of no effect. There is no merit in any of these contentions, and they are overruled.
The contention that the decree in cause No. 2547 set aside to, or vested title in, Mrs. Fannie Massey or her children, the plaintiffs in this suit, to any specific lands belonging to the estate of IT. H. Massey, deceased, is wholly untenable. That suit was one brought by James F. Massey, son of the first wife of said IT. H. Massey, against M. L. Womack, administrator of said IT. IT. Massey’s estate with will annexed, Mrs. Fannie Massey, the third and surviving wife of said H. PI. Massey, and all the children of the second and third wives of H. H. Massey, to recover such portion of the entire estate, real and personal, held by his deceased father at the time of his death, as belonged to the estate of his deceased mother, Jane Massey, the first wife of said IT. H. Massey. A decree was entered in said cause setting aside to the plaintiff James F. Massey one-*125fourth of said property, and to the administrator of H. H. Massey and the other defendants the other three-fourths thereof in bulk. By the decree of partition in said cause there was set aside to defendants Wo-mack, administrator, -and others, three separate tracts of land, first, the 178% acres, called the old homestead in the will of H. H. Massey, being the tract involved in this suit, a part of the S. 0. Robertson league, 40 acres, a part of the N. W. Thornton survey, and 160 acres, a part of the Ed Hill survey, referred to in said will as “my homestead.” When we look to the whole proceedings in said cause No. 2547, we think it clearly apparent that it was not intended by that suit, or by the decree entered therein, that any of the defendants should be vested with title to any lands which had not theretofore vested in them; or to divest any of them of any title to any lands whatever, except as between them and plaintiff James F. Massey, and that such decree had no other effect. We think the trial court correctly found that the only effect of said decree was to partition the interest of James Massey in said properties from the interest therein belonging to the estate of H. H. Massey, deceased. There was no adjudication of the rights of the defendants as between them in said cause. If the appellants ever had any interest in the land involved in this suit, it was by bequest in the will of H. H. Massey, and not by virtue of the decree in cause No. 2547.
We also agree with the trial court in his finding that suit No. 2596 was brought by M. L. Womack, administrator, to have partitioned and set aside for the estate of H. H. Massey, as against Eugene and other children of the second wife of said Massey, the interest of said estate in said land from the interest of said children therein, as heirs of their deceased mother, who owned an undivided one-half interest therein at the time of her death, so that he might take possession thereof and administer the same as the administrator of said estate, and for no other purpose. We are of the opinion that the district court had the power and authority to entertain said suit and to render the decree entered therein, and to have the lands involved sold for the purpose of partition.
It is provided by article 1836 of the Revised Civil Statutes that suits for the possession of lands may be instituted by executors, administrators, or guardians appointed in this state, in like manner as they could have been by their testator or intestate; and that judgment in such cases shall be as conclusive as if rendered in favor of, or against, such testator or intestate. Let us suppose that after the death of his second wife, and prior to his own death, H. H. Massey had instituted suit against his second set of children, as was done in cause No. 2596 by M. L. Womack, his administrator, and had pleaded the same identical facts that were pleaded in that ease by the administrator ; would there have been any question as to his right to bring such suit? Of course not. That being true, then, in our judgment, article 1S36, supra, would be meaningless if it does not confer the same right upon the administrator of his estate. It is not necessary to make the heirs parties to suits brought by an administrator of an estate in which they have an interest, so as to bind them by the decree entered thereon. Lawson v. Kelley, 82 Tex. 457, 17 S. W. 717; Boggess v. Brownson, 59 Tex. 417; Gunter v. Fox, 51 Tex. 383; Rogers v. Kennard, 54 Tex. 36; Zacharie v. Waldrom, 56 Tex. 116,
The district court of Burleson county had the authority by special commissioner to sell the land in question for the purpose of partition in cause No. 2596. Article 6111, Revised Statutes. It is provided by article 6111, cited above, that:
“Should the court be of the opinion that a fair and equitable division of the real estate, or any part thereof, cannot be made, it shall order a sale of so much of such real estate as is incapable of partition, which sale shall be for cash, or upon such other terms as the court may direct, and shall be made as under execution, or by private sale through a receiver, if the court so order, and the proceeds thereof shall be returned into court and be partitioned among the persons entitled thereto, according to their respective interests.”
We conclude that the deed from E. B. Bell, special commissioner, to G. W. Price, conveyed good title to the land sold to Price as against the estate of H. H. Massey and his heirs or devisees, and that appellee, who holds title by onesne conveyances from Price, now has title to said land.
We also conclude that the trial court correctly found and held that appellee has title to the land in question under the ten-year statute of limitation pleaded by him.
We sustain the conclusion of the trial court that the land involved in this suit was bequeathed to Mrs. Fannie Massey, the third wife of H. H. Massey, by the will of said Massey, and that she was the owner of the same a.t the time it was sold and conveyed to G. W. Price, by order of the district court on the 11th day of December, 1896, subject only to the payment of debts against the estate of H. H. Massey in the possession of M. L. Womack, administrator of said estate.
The evidence shows the land was conveyed by Bell, special commissioner, to G. W. Price by his deed of date December 11, 1896; that Price took possession of said land immediately after his purchase in 1896, during the life of Mrs. Fannie Massey, who died some seven years later; that Price, and those holding under and through him, had held continued peaceable, adverse, and uninterrupted possession of said land, using and cultivating the same, from the date of the purchase by Price up to the date of bringing this suit by appellants on the 9th day of November, 1914, a period of about 18 years.
*126We have considered all of appellants’ assignments and what has been said disposes of all of them, and they are therefore overruled.
We find no error in the trial of the cause, nor in the judgment rendered in the court below; therefore the same is affirmed.
Affirmed.