Hampton, the appellee, filed this suit in the form of an action of trespass to try title for the recovery of 25 acres of land situated in Morris county. He claimed title through a deed from J. R. Hampton as administrator of the estate of Grant and Angelina Collins, dec-eased. ' Appellants, defendants below, are the children of Grant and Angelina Collins. They answered by a plea of not guilty, and specially pleaded as follows:
“Por special answer if it be necessary, defendants say: That they are the children and the only heirs at law of Grant and Angelina Collins. That Grant Collins died in 1919, and Angelina Collins his wife died in 1918. That both died intestate. That said parties owned the land described in plaintiff’s petition as their homestead, having acquired it and resided upon it many years prior to their death. That upon the death of Angelina Collins, Grant Collins, the husband, continued to reside on the. land as his homestead up until his death in 1919, and that after his death Palina Johnson, an unmarried daughter of said Grant and Angelina Collins, has continued to reside upon it until this time, together with her children. That she was separated from her husband when Grant Collins died in 1919, and Secured a divorce in said year, and after his death. That she secured -a divorce prior to the time that said land was attempted to be sold through the probate court. That for several years before the death of said parents she lived with them and cared for them until their death, and being at this time separated from her husband. That she has not remarried and is now unmarried and still residing on said land. That she had continuously *892made same her home from the time she went to live with her parents up until this time.”
They further pleaded, that there were no debts against the estate of Angelina Collins, and a collusion between the administrator and the purchaser in the sale of the property in payment of the claims presented. The trial court found that the land was the separate property of Angelina Collins. He concluded, however, that “the plaintiff, having bought the land at administrator’s sale under orders of the probate court legally made, without any notice of the separate character of the 25 acres of land, took good title thereto,” and rendered judgment in favor of the appellee.
The plaintiff offered in evidence a deed from J. H. Hampton, administrator of the estate of Grant and Angelina Collins, deceased. He also introduced excerpts from the probate records, beginning with the application for administration and including the report and confirmation of the sale of the land. That record shows that 'the property was inventoried as belonging to the community estate of Grant and Angelina Collins, and that only two claims were relied on as showing a necessity for an administration. One of these was for telephone service, apparently rendered in 1920, some time after the death of both Grant Collins and his wife. The other was a note made by J. H. Collins, a son of Grant Collins,, to Hampton Bros., and transferred by Hampton Bros, to the Morris County National Bank. That note had been given by J. H. Collins in' settlement of the purchase price of the caskets in which his father and mother were buried. It seems that these were purchased by him from Hampton Bros. The court in his findings refers to another claim of $20 in favor of Dr. C. D. Hibbitts, which was also' allowed, but the record before us does not show the presentation or allowance of any such claim.
One of the grounds relied on for a reversal of the judgment is that under the evidence Palina Johnson was entitled to the possession of the land as an unmarried daughter remaining with the family, under the provisions of article 3413, Rev. Civ. Stat. 1911. If in disposing of that question the land should be regarded as the separate property of the wife of Grant Collins and not subject to administration, that statute has no application. The possessory rights there conferred attach to estates which are being administered and such as are subject to administration. Upon the death of Angelina Collins, the land, if it belonged to her separate estate, descended and vested in appellants, her children, subject only to their father’s life interest and homestead rights. At his death Palina and the other children were entitled to its possession as owners, not as members of the family of the deceased. But if the land be treated as community property Palina was not entitled to possession under the statute, because she was not an unmarried cjaughter at the time her father died. Wilkins v. Briggs, 48 Tex. Civ. App. 596, 107 S. W. 135. Although living apart from her husband, she was in law a married woman and not within the terms of the statute. Her testimony shows that she was about 50 years of age at the time of the trial; that she was living with and taking care of her father on account of his physical condition; she was apparently not there as a dependent member of the family, for whose benefit the statutory provision was intended. Why she was not living with her husband is not shown. It does appear, however, that he afterwards secured a divorce from her, which is consistent with the inference that she left him voluntarily.
Appellants also contend that since the proof showed and the court found that the land was their mother’s separate property and for that reason not subject to sale by the administrator, judgment should have been rendered 'in their favor. The trial court had before him the probate proceedings, and his judgment is consistent with the conclusion that the land, while apparently community property of Grant and Angelina Collins, was in fact the separate property of Angelina and for that reason was not subject to sale by the administrator. He sustained the conveyance to the purchaser at the administrator’s sale, however, upon the ground that the purchase was made for a valuable consideration and without notice of the separate rights of Angelina Collins. It is well settled that the probate court has no jurisdiction to determine issues of title to real estate which may arise in the course of an administration. Bradley v. Love, 60 Tex. 472; White v. Shepperd, 16 Tex. 163; McDougal v. Bradford, 80 Tex. 564, 16 S. W. 619.
The evidence shows that this land was acquired by purchase during the time Grant and Angelina Collins were husband and wife. The conveyance was made to Angelina, the wife, for a valuable consideration paid, and without reciting anything indicating that it was for her separate use or benefit. The land was therefore presumptively community property, and would be so treated in all transactions with purchasers for value and without notice of the wife’s separate rights. Houston Oil Co. v. Choate (Tex. Com. App.) 232 S. W. 285; McClintic v. Midland Gro. Co., 106 Tex. 32, 154 S. W. 1157; Texarkana Nat. Bank v. Hall (Tex. Civ. App.) 30 S. W. 73. But as between the parties and their privies, and purchasers with notice, the land remained the separate property of Angelina, and upon her death descended to her children. The only evidence of notice was that which arises from the occupancy and possession of Palina Johnson. She was living with her parents on the land when they died, *893and she continued in possession after the' death of her father in 1919. Before the administrator was appointed she was divorced from her husband and became a feme sole. As such she was in possession at the time of the appointment and continuously to the time of the trial in the court below. Her possession was at least constructive notice of all the rights which she might claim as an heir of her mother. Houston Oil Co. v. Choate, supra; Collum v. Sanger, 96 Tex. 162, 82 S. W. 459, 83 S. W. 184. If the purchaser had actual notice of her possession at the time of his purchase, he would be charged with notice of what he might have ascertained from her by inquiry. If by that inquiry he would have learned that the land was claimed as the separate property of the deceased mother, he could not claim the status of a purchaser without notice as to the other children. Haywood Lumber Co. v. Bonner, 56 Tex. Civ. App. 208, 120 S. W. 577. But the record does not show whether appellee had actual notice of Palina’s possession or not. He did not testify in the trial. The material-facts discussed are those found by the court, and the appellee has not attacked those findings as unsupported by the evidence. We are of the opinion that the court erred in concluding that Palina Johnson’s interest in the land passed by the administrator’s sale. As to that interest appellee could not claim to be a purchaser without notice.
The judgment will be here rendered, denying appellee a recovery against Palina Johnson ; but the judgment as to the other appellants is affirmed.