This was an action of trespass to try title, instituted by Houston Oil Company of Texas against the Village Mills Company, in which the D. C. Montgomery league of land in Hardin county was involved. The appellant, by cross-action, brought in the Maryland Trust Company, alleging that it was asserting some sort of lien or claim on the land by reason of a deed of trust executed for its benefit by the Houston Oil Company. In addition to the plea of not guilty, the appellant also answered that it had matured title under the three, five, and ten year statutes of limitation. The Houston Oil Company also alleged in its petition that, in addition to holding the fee-simple title to the land, it had acquired a good and perfect title under the three, five, and ten year statutes of limitation. After the evidence for both sides had been submitted, the court gave a peremptory instruction to the .jury to render a verdict for appellees, which was done, and the judgment entered accordingly, from which the appellant has perfected an appeal.
Appellee Houston Oil Company’s title is deraigned as follows; Mexican government to D. C. Montgomery, one league of land August 29, 1835; D. C. Montgomery to Samuel Moore, warranty deed June 5, 1S3S; Samuel Moore, by attorney, to Mary E. Brown, August 10, 1849; Mary Brown Frazier and husband to T. J. Word, deed dated January 19, 1855; T. J. Word to George F. Moore, December 8, 1858; George F. Moore to Susan B. Moore, December 7, 1860; T. J. Word to Susan B. Moore, partition deed July 5, 1866; Susan B. Moore and George F. Moore to John P. Irvin, August 4, 1881; John P. Irvin to Texas Pine Land Association, December 11, 1891; Texas Pine Land Association, by its trustees, to Houston Oil Company of Texas, special warranty deed dated July 31,1901, and also by deed of date December 5, 1914.
Appellant filed an affidavit of forgery against the deed from D. C. Montgomery to Samuel Moore, of date June 5, 1838. Appellant’s record title shows that it claims to have the fee in the league of land under the following instruments: Mexican government to D. C. Montgomery, August 29, 1835; D. C. Montgomery to Arthur Henry, deed January 27, 1836; Arthur Henry to Samuel Beresford, -February 27, 1845; heirs of Samuel Beresford to W. W. Clippinger, power of attorney February 19, 1901; heirs of Samuel Beresford, by attorney, to Brackin and Hooks, by deed dated March 28, 1914; Hooks and Brackin to Village Mills Company, April 7, 1914.
The records and briefs are voluminous, and many assignments of error are presented, but the judgment of the lower court must be sustained, unless three contentions urged by the appellant can he successfully maintained, viz.;
First. That the judgment of the United States Circuit Court at Beaumont in November, 1903, against the Beresfords, appellant’s predecessors in title, was not valid and binding ; that judgment having been interposed by appellees as an estoppel in this suit against *788the appellant’s assertion oí title to the land in question.
Second. That the record in the case required a submission to the jury of the question of forgery of the deed from Montgomery to Moore, against .which an affidavit of forgery had been filed.
Third. That neither the three, five, or ten year statutes of limitation were established by the uncontroverted testimony in favor of appellees and those through and under whom they claim.
We will therefore consider these questions in the order in which they are stated, rather than follow the numerical assignment of them as found in the briefs.
On November 11, 1901, Richard Beresford and others, the heirs of Samuel Beresford, alleging themselves to be citizens of the states of Ohio, Illinois, and Pennsylvania, through their attorney, W. W. Clippinger, and other counsel, filed in the United States Circuit Court for the Eastern District of Texas, at Beaumont, suit No. C. L. 94, styled Richard Beresford et al. v. Texas Pine Land Association, wherein the plaintiffs in said suit were alleged to he the owners in fee simple and entitled to the possession of the ID. C. Montgomery league in Hardin county, Tex., the same land which is here involved, such suit being an action in trespass to try title, and, among other things, the petition contained the following language:
“Complaining of the Texas Pine Land Association, which is a joint-stock association, having its principal office in Houston, Harris county, Tex., and its trustees, Clerendon Harris, who resides in Tyler county, Tex., and Thomas S. Nelson, Horatio R. Fletcher, and Francis Peabody, Jr., the last-named three trustees being residents of Suffolk county, Mass,” etc.
Also such petition contained the following allegation:
“As to said Texas Pine Land Association, plaintiff alleges that service on the above-named three trustees is sufficient; that plaintiff knows of no other shareholders or persons interested in or owning any interest in said Texas Pine Land Association, save and except the above-named trustees.”
The rest of the petition was in ordinary form of trespass to try title.
The Texas Pine Land Association and the trustees of the Texas Pine Land Association, except Clerendon Harris, who was dismissed from the suit, answered in said cause, and excepted to plaintiff’s petition generally and on the ground of want of jurisdiction, entering also the ordinary plea of not guilty and the plea of general denial, and pleas of limitation under the three, five, and ten year statutes. This answer was filed August 26, 1902. The exceptions to the jurisdiction and otherwise were not sustained, and, the cause coming on for trial, all the defendants were dismissed except the Texas Pine Land Association and its trustees, Thomas S. Nelson, Horatio R. Fletcher, and Francis Peabody, Jr., and judgment was rendered on November 26, 1903, that plaintiffs take nothing by their suit, and judgment was also rendered that the defendants recover from the plaintiffs all costs. A certified copy of this judgment was filed in Hardin County, Tex., January, 1906.
Appellant’s ninth and tenth assignments of error attack the action of the court in allowing the introduction of the pleadings and the judgment in the federal suit, for the purpose of proving an estoppel in this cause, for the following reasons, to wit:
(a) The federal court was without jurisdiction, and the proceedings were void.
(b) The record affirmatively shows that the Texas (Pine Land Association and its trustees had previous to the institution of the suit, to wit, on July 31, 1901, conveyed the entire interest and estate that they had in the land in controversy to the Houston Oil Company of Texas, whereas the suit referred to was instituted on the 11th day of November, 1901, at a time when the Texas Pine Land Association had no interest whatever in said land.
(c) Not necessary to consider under the disposition we make of the case.
(d) Because there was no pleading of estoppel or res adjudicata by plaintiff as the basis for the introduction of any such evidence.
The first proposition urged under these two assignments is, in substance, that the defendant in that suit, being a joint-stock association, was a mere partnership, and therefore not a citizen of the United States, within the meaning of the statutes of the United States imposing jurisdiction upon the federal court by reason of diversity of citizenship, and on this account the federal court at Beaumont did not have jurisdiction of the suit brought by said plaintiffs, although citizens of other states, and that the judgment rendered in said cause was therefore a nullity, and could be collaterally impeached whenever and wherever it was brought in question,
[1,2J The federal courts of the United States are courts of limited jurisdiction, and can only exercise their powers within prescribed limits. One of the grounds of jurisdiction of that court, and that upon which its action was invoked in the case of Beres-ford v. Texas Pine Land Association, supra, was diversity of citizenship of the parties to that action.
[3] It is now the settled rule, under the decisions of the United States Supreme Court, that a joint-stock association cannot be a “citizen,” within the meaning of the statutes regulating jurisdiction of the federal court.
In the case of Chapman v. Barney, 129 U. S. 677, 9 Sup. Ct 426, 32 L. Ed. 800, that court said:
“On looking into the record we find no satisfactory showing as to the citizenship of the plaintiff. The allegation of the amended petition is, that the United States Express Company is a joint-stock company organized under *789a law of the state of New Xork, and is a citizen of that state. But the express company cannot be a citizen of New Xork, within the meaning of the statutes regulating jurisdiction, unless it be a corporation. The allegation that the company was organized under the laws of New Xork is not an allegation that it is a corporation. In fact, the allegation is that the company is not a corporation, but a joint-stock company — that is, a mere partnership. And, although it may he authorized by the laws of the state of New Xork to bring suit in the name of its president, that fact cannot give the company power, by that name, to sue in a federal court.”
Again, in the case of Great Southern Fireproof Hotel Co. v. Jones, 177 U. S. 449, 20 Sup. Ct. 690, 44 L. Ed. 842, the court says:
“A limited partnership association created under Pennsylvania laws of 1874 (page 271), although it may be called a quasi corporation and is declared by the state statute to be a citizen of the state, is not, like a corporation created under the laws of the state, to be deemed a citizen of that state, within the meaning of the clause of the federal Constitution which extends the judicial powers * * * to controversies between citizens of different states. The citizenship of the individual members of a limited partnership association created, by the laws of Pennsylvania must be alleged in a suit by that association in a federal court, where jurisdiction depends upon diverse citizenship of the parties.”
These two opinions are decisive of the point under investigation, and it is obvious that the law did not authorize a suit in the federal court against the Texas Pine Land Association as a joint-stock association. Counsel for appellees do not dispute the legal effect 'of these two decisions, but seek to sustain the jurisdiction of the federal court on the theory:
(1) That, the court having taken jurisdiction of said cause and adjudicated the matters in said suit, although erroneously, still said judgment is not void, but only voidable, and, not having been appealed from, is binding upon the parties.
(2) That, if it be determined that the Texas Pine Land Association is a partnership, still there was no defect in the jurisdiction, because it did not appear that there was any member of such partnership who was not before the court, but, on the contrary, on the face of their original and amended petition, the plaintiffs in that suit alleged that all persons known to have had any interest in the Texas Pine Land Association were parties defendant, and, the requisite diversity of citizenship of such defendants being alleged, the court had jurisdiction to try the suit.
(8) Upon the theory also that the- Texas Pine Land Association was a trust estate, represented by three trustees, and they being properly before the court, and the record showing that such trustees had the requisite diversity of citizenship, the federal court thereby had jurisdiction.
The decisions of the Supreme Court of the United States, Cutler v. Houston, 158 U. S. 423, 15 Sup. Ct 868, 39 L. Ed. 1040, Evers v. Watson, 156 U. S. 527, 15 Sup. Ct. 430, 39 L. Ed. 520, Dowell v. Applegate, 152 U. S. 327, 14 Sup. Ct. 611, 38 L. Ed. 463, and Des Moines Navigation & Railroad Co. v. Iowa Homestead Co., 123 U. S. 552, 8 Sup. Ct. 217, 31 L. Ed. 212, seem to support appellees’ theory that the judgment was only voidable, and not void; but since taking the view of this case that we do, we find it unnecessary to determine this question.
It is to be noted in the quotation heretofore made from the allegations of the petition in the federal suit that the plaintiffs alleged, after joining the trustees, that:
“Plaintiffs know of no other shareholders or persons interested in or owning any interest in said Texas Pine Land Association, save and except said above-named trustees.”
A careful scrutiny of said petition does not disclose any language expressive of the purpose or intent upon the part of the plaintiffs to sue the defendant as a partnership, nor the individual defendants named as partners; but, on the contrary, the language used shows a clear and unmistakable purpose to sue the defendant as a joint-stock association, and the individuals named, in their representative capacity, as trustees ; in other words, to sue the trust estate in the person of said trustees. We cannot hold the language of the petition is such as to constitute the suit in question as one against a partnership and against the individuals named therein as partners, and therefore we do not think that appellees’ contention upon this point is well taken. It is to be noted that in the federal court suit the joint-stock association was not only mentioned as a defendant, but also the three trustees acting for said association, thus signifying an effort to reach the trust estate through the three named trustees.
[4] The general rule is that in all proceedings affecting a trust estate, whether brought by or against third persons, the trustee and the cestui que trust are so independent of each other that the latter must be made a party to the suit in order to be bound by the judgment or decree rendered therein. Black on Judgments .(2d Ed.) vol. 2, § 585. But it is also the rule that a suit prosecuted or defended in good faith by a trustee for the beneficiaries, with their knowledge and consent, or more particularly at their request, will be conclusive on them in its results. Hornsby v. City National Bank (Tenn. Ch. App.) 60 S. W. 160; Bracken v. Atlantic Trust Co., 36 App. Div. 67, 55 N. Y. Supp. 506; Black on Judgments (2d Ed.) vol. 2, § 585.
By the express provision in the declaration of trust signifying the agreement between the trustees and the stockholders of the Texas Pine Land Association, which declaration of trust .was recorded in the deed records of Hardin county, Tex., on August 10, 1894, it is provided:
“Article 1. The name of this trust, or association shall be the Texas Pine Land Association.
“Art. 2. The .trustees shall hold all of the real *790estate and other property now belonging to or vested in them as trustees of the Texas Pine Land Association as joint tenants, and not as tenants in common, in trust for the benefit of the shareholders, in proportion to the number of shares held by them in this trust.
“Art. 3.. Shareholders in said association shall have no legal rights to the trust property, either real or personal, held from time to time by said trustees, and especially shall they have no right to call for any partition thereof, but the shares shall be personal property, carrying the right of division of profits, and, at the termination of said trust, the division of principal and profits.
“Art. 4. The death of a shareholder during the continuance of this trust shall not operate to determine the trust, nor shall it entitle the legal representatives of a deceased shareholder to an accounting of or to take any action in the courts, or otherwise, against the trust or the trustees, but the executors, administrators, or assigns of the deceased shall succeed to all rights of said decedent under this trust. * * *
“Art. 7. The officers of said association shall consist of a board of three trustees. * * * In the month of June, A. D. 1886, and biennially thereafter, the trustees of the association shall be elected by the shareholders for the term of two years and until their successors shall have been elected and qualified; and each board shall succeed to the powers and duties of its predecessor.
“Art. 8. The trustees shall have full power and authority, except as they shall be instructed by the shareholders, as hereinafter provided: * * *
“(2) To act in all suits and legal proceedings relating to the trust estate in any courts of law or equity, and before other bodies and tribunals, to employ counsel and to commence suits and proceedings, and to compromise or submit to arbitrations all matters of dispute to which the trust or the trustees may be a party, when in their judgment necessary or prop-(jr. ♦ ♦ ♦
“(5) * * * To sell the said trust lands and property, and all property, real or personal, conveying said trust lands in fee simple or for a less estate, free and discharged of all trusts, at public auction, or by private contract of sale, at such times during the continuance of this trust, etc., either for cash or credit, or as may seem to them judicious, without the necessity of applying to any court or to the beneficiary under the trust for leave to do so, * * * and all grantees from the trustee shall acquire.thereby a good and absolute title to the property conveyed to the extent proposed to be conveyed, free and discharged from all trusts, and shall not be obliged to see the application of the purchase money therefor, nor to require any evidence of the accounting to this association. * * ■ *
“Art. 11. Also upon the resignation, death, removal, or inability of any trustee to serve in such capacity, and upon the election of any successor in his stead, as hereinabove provided, the surviving or resigning trustee or trustees shall execute with and deliver to the successors in trust all deeds, conveyances, transfers, and assignments needful or proper under the circumstances to vest all the trust property and estate of said association in the new trustees or new board of trustees in like manner and with the same powers and duties as the title and ownership of said property was vested in the original board of trustees.
“Art. 12. The trustees by vote of majority of the board shall have full power as trustees, attorneys, and agents on behalf of said association to do all things in their judgment necessary and prudent for the purchase of land and the sale of stumpage therefrom, and the conduct of said management of the property and business requisite and desirable for the purposes of said association as hereinafter set forth. * * * ■
“Art. 28. The foregoing by-laws and any amendments or alterations of same that may be made may be recorded in part or in whole, wherever necessary whenever it may be advisable to do so, to give title to any of the lands to be sold; and the trustees and the secretary then of record are hereby authorized to execute and record all certificates required to effect such conveyances.”
[5, 6] We think it was clearly the purpose and intention of this instrument to authorize the trustees to handle the property generally, and to sue, prosecute, and defend suits in their capacity as trustees, without joining the cestui que trust or stockholders, and under such circumstances any judgment that might be rendered in the nature and character of a suit as that in the federal court brought by the Beresford heirs would be binding upon the stockholders and the trust estate, even though such stockholders were not joined as parties to that suit. We therefore think that, the record in said suit showing that the trustees were properly before the court, and showing, further, the requisite diversity of citizenship, the jurisdiction of the court as to them in their representative capacity attached, and the court therefore had jurisdiction to try the cause.
[7] In the application of the rule of res adjudicata it is essential that there not only be a valid judgment, but that its operation be mutual. Therefore a party will not be concluded against his contention by a former judgment, unless he could have used it as a protection or as a foundation of a claim had the controversy been the other way; and, conversely, no person can claim the benefit of a judgment as an estoppel upon his adversary, unless he would have been prejudiced by a contrary decision of the ease. Black on Judgments, § 828.
[8] On the principle that estoppel must be mutual, no person is allowed to take advantage of a former judgment or decree, as decisive in his favor of a matter in controversy, unless, being a party or privy thereto, he would have been prejudiced by the same had the decision been against his interest. Id. 80S.
[9] Privies, in the sense that they are bound by the judgment, are those who acquired an interest in the subject-matter after the rendition of the judgment; if their title or interest attached before that fact, they-are not bound, unless made parties. Id. § 832.
Revised Statutes, art. 7758 (Vernon’s Sayles’), following this general doctrine, provides ;
“Any final judgment rendered in any action for the recovery of real estate shall be conclusive as to the title or right of the persons established in such action, upon the party against whom it is recovered, and upon all other persons claiming from, through or under such party, by title arising after the commencement of such action.”
Speaking of this statute, in the case of Stout v. Taul, 71 Tex. 444, 9 S. W. 331, the Supreme Court says:
*791“This [the statute] restricts the conclusive effect of the judgment to the parties in legal effect before the court where it is rendered;, makes certain by the record the extent and effect of the judgment, and avoids all the uncertainty in reference to such judgments as would result if evidence outside the record might be resorted to for the purpose of showing who are bound by a judgment, or, in other words, who were parties to the action. It establishes a rule consistent with the principle of justice, which denies the effect to a judgment against any one not brought before the court rendering it in some mode prescribed by law, except as to those claiming through a party to such action through inheritance or representative, or by conveyance made pending or after the commencement of the action.”
It appears in the instant case that the Texas Pine Land Association, acting through its trustees, had conveyed the league of land in controversy to the Houston Oil Company by deed, not only executed, but recorded prior to the institution of the federal court suit.
Now, applying these well-established rules to the case under investigation, can it be said that, had the decision in the Beresford suit against the Texas Pine Land Association been adverse to the latter, such judgment could have been pleaded in bar of the instant ease by the appellant as an estoppel against the Houston Oil Company? We think not. The decisions of the courts of the land are almost unanimous on the subject.
The case of Elliott v. Morris, 49 Tex. Civ. App. 527, 121 S. W. 209, is in point. In that case it appears that the state of Texas had patented a section of land to one Logan on November 4, 1900. On January 21, 1901, Logan conveyed the land to J. A. Elliott. On February 7, 1901 (about a month after the land had been conveyed by Logan to Elliott), I. C. Morris instituted suit against Logan to recover the land, and thereafter, on April 18, 1901, recovered judgment therein. Some time about the year 1905 the appellant- in the case supra, J. A, Elliott, filed suit in trespass to try title to recover the same section of land from I. C. Morris. The trial court permitted the introduction of the judgment theretofore obtained by Morris in the suit against Logan, under the appellee’s plea of res adjudicata. Referring to this matter on appeal, the court said:
“The judgment relied upon as being conclusive of the controversy between the parties to this suit was rendered April 18, 1901, in a statutory action of trespass to try title bróught by appellee against appellant February 7, 1901. On the face of the record of that suit appellant was not a party to it. * * * We do. not think, in any view of the law, that the connection appellant * * * had with the suit * * * should be held to operate to conclude him from asserting the title he is here asserting to the land. But there is another view, precluding such a result, to be taken of the case. The Morris suit against Logan was the statutory action of trespass to try title. The law then and now in force declares that ‘any final judgment rendered in any action for the recovery of real qstate hereafter commenced shall be conclusive as to the title or right of possession established in such action upon the party against whom it is recovered, and upon all persons claiming from, through, or under such party, or by title arising after the commencement of such action.’ * * * Construing the statute quoted, Chief Justice Stayton, in Stout v. Taul, 71 Tex. 444 [9 S. W. 329], says: [Same as above quoted.] So construed, it seems to us the statute must be held to be conclusive of the question made on this appeal. The trial court should not have submitted, as an issue to be determined by the jury, appellee’s plea of res adjudicata. The plea on its face was insufficient, and the evidence admitted under it did not present a defense to appellant’s suit.”
In the case of Dull v. Blackman, 169 U. S. 243, 18 Sup. Ct. 333, 42 L. Ed. 733, the Supreme Court of the United States on the same subject said:
“It further appears from the findings of fact made by the trial court in Iowa, and sustained by the Supreme Court of that state, that the entire right and title had passed from Black-man to Phelan in September, 1892, nearly two months before the commencement of the suit in New York. * * *
“We remark again that, while a judgment or decree binds, not merely the party or parties subject to the jurisdiction of the court, but also those in privity with them, yet that rule does not avail the plaintiffs in error, for Phe-lan acquired his rights prior to the institution of the suit in New York, and was therefore not privy to that judgment. ‘It is well understood, though not usually stated in express terms in works upon the subject, that no one is privy to a judgment whose succession to the rights of property thereby affected occurred previously to the institution of the suit. A tenant in possession prior to the commencement of an action of ejectment cannot therefore be lawfully dispossessed by the judgment unless made a party to the suit. * * * No grantee can be bound by any judgment in an action commenced against a grantor subsequent to the grant, otherwise a man having no interest in property could defeat the estate of the true owner. The foreclosure of a mortgage, or of any other lien, is wholly inoperative upon the rights of any person not a party to the suit, whether such person is a grantee, judgment creditor, attachment creditor, or lienholder.’ * * *
“As Phelan was not brought within the jurisdiction of the New York court, and as the suit in that court was instituted nearly two months after he had acquired full title to the real estate, the decree of that court did not bind him as a party, nor bind him as in privity with Blackman, his grantor. The Supreme Court of Iowa did not err in so holding.”
In the case of Cook v. Lasher, 73 Fed. R. 701, 19 C. C. A. 654, it was held:
“A decree canceling the debt of a commissioner of school lands in a suit against the commissioner’s grantee does not affect the right of one to whom the grantee conveyed before the commencement of the suit, and who was never served with process, and never became a party.”
For other cases in point see Southern Bank & Trust Co. v. Folsom, 75 Fed. 929, 21 C. C. A. 568; Carroll v. Goldschmidt, 83 Fed. 508, 27 C. C. A. 566; Hunt v. Haven, 52 N. H. 162; Bennett v. Gray, 92 Hun, 86, 38 N. Y. Supp. 372; Moreland v. Frick Coke Co., 170 Pa. 33, 32 Atl. 634; Bensimer v. Fell, 35 W. Va. 15, 12 S. E. 1078, 29 Am. St. Rep. 774; Hodge v. Plodge, 56 S. C. 263, 34 S. E. 517; Garrard v. Hull, 92 Ga. 787, 20 S. E. 357; Elwell v. New England Loan Security Co., 101 Ga. 496, 28 S. E. 833; Patapsco Guano Co. v. Hurst, 106 Ga. 184, 32 S. E. 136; Roulston v. Hall, 66 Ark. 305, 50 S. W. 690, *79274 Am. St. Rep. 97; Gregory v. Clabrough’s Executors, 129 Cal. 4751, 62 Pac. 72; Gage v. Parker, 178 Ill. 455, 53 N. E. 317; Freeman on Judgments (1st Ed.) § 162.
The fact that the Texas Pine Land Association, through its trustees, had previously sold said land to the Houston Oil Company under a special warranty deed, will not alter the rule. Under that deed there was a responsibility over against the Texas Pine Land Association under the implied covenants, as grantor to the Houston Oil Company. The obligation arising on said covenant was to tlie Houston Oil Company and its successors in title. Under that contract, if the title to the land conveyed had been in any manner contrary to the covenants, the Houston Oil Company had the right to vouch in its grantor to defend the title. This right was in the nature of a privilege. The Houston Oil Company, had it seen fit so to do, might have waived such a privilege, and made defense of the suit itself, and in such event the Beresford heirs were not in any position to make any objection thereto. The contract under the covenants in said deed was one in which the Beresfords were not in any way concerned. They were not parties nor privies to it, and could not take advantage of nor be prejudiced by its existence or any of its provisions. The deed in question conveyed all the right, title, and interest in the land, in so far as the Texas Pine Land Association and its trustees were concerned, to the Houston Oil Company. In so far as the title to the land — the subject-matter of the litigation in the federal court suit' — was concerned, the Texas Pine Land Association and its trustees had no interest.
The judgment in the Beresford suit certainly lacked mutuality in so far as it affected the Houston Oil Company, and therefore could not constitute an estoppel in its favor.
Counsel for appellees roly upon the case of Kramer v. Breedlove (Sup.) 3 S. W. 561, to sustain the admissibility of the judgment in question as res ad judicata. In that case the Supreme Court, speaking through Justice Stayton, said that, whore one had sold and conveyed land under a general warranty deed, and thereafter brought an action in his own name to quiet the title, the decree rendered in the action in his favor inured to the benefit of his vendee, although the ven-dee was not a party to the action. An examination of that case, however, shows the following state of facts: That W. G. Wilkins sold and conveyed two tracts of land to A. Kramer on October 10, 1881, in which Kramer executed as part of the purchase piice two notes, one due January 1, 1882, and the other due January 1,1883, and in the conveyance a vendor’s lien was reserved to secure the payment of the notes. Subsequently the notes were transferred to C. R. Breedlove. After he came in possession of che notes a dispute arose between Wilkins and Kramer about the marketableness of the title to one of the tracts included in the deed of conveyance, and it was agreed between all the parties concerned — that is to say, between Wilkins, Kramer, and Breed-love — that Kramer would pay one of the notes, and that the other was not to be paid until Wilkins had cleared the title to the tract of land in dispute. In furtherance of this agreement, Wilkins filed suit against one Evans, who was asserting some claim against said tract of land, alleging that he (Wilkins) was the owner of the land, and recovered a judgment clearing up the title to said tract. Breedlove claimed that Wilkins had performed his part of the agreement, and thereupon brought suit against Kramer on the second note, and Kramer defended on the ground that Wilkins, having sold the land before that suit was brought, had no such interest as made him a proper party, and therefore the judgment in his favor would not be available as res adjudi-caba to Kramer if the children of Evans should thereafter sue him for the land. The Supremo Court held that Kramer was bound by this judgment, and that it could be properly interposed as a plea of res adjudicate. It is to be noted, however, that there was a specific agreement between all the parties concerned that such judgment should be binding, and we think the language of the Supreme Court in the Breedlove Case should be considered in connection with the facts involved in that suit, and not as establishing a broad doctrine in this state contrary to the well-established rule affecting judgments of this nature, when pleaded as res adjudi-caba.
Again, appellees urge upon us as sustaining their plea of res adjudicaba the case of Powell v. Heckerman, 6 Tex. Civ. App. 304, 25 S. W. 166. In that case it would appear that the state of Texas patented a section of land to Fannie P. Heckerman September 18, 1883, that she died in 1884, leaving one child, Fannie A. Heckerman, and that at the time of her death she was a nonresident of the state. Powell & Gage, a partnership firm composed of A. M. Powell and E. L. Gage, brought suit against Fannie P. Heckerman and her husband in 18S5 (Fannie P. Ilecker-man then being dead), and, procuring service by publication, recovered a judgment for debt and foreclosing a lien upon said section of land, and under execution sale was made to E. M. Powell. Thereafter, in the year 1886, Fannie A. Heckerman, by Ed P. Heckerman, her father and next friend, filed suit against the said Powell & Gage praying on final hearing for a review of said cause, and that said judgment be set aside, and that the cloud cast upon the title because of said execution sale be removed, and that they be quieted in their title as against the same. In the trial of that suit the court entered judgment holding the previous judgment void and *793setting it aside, but, instead of following the prayer of the petition, decreed that Fannie A. Heckerman and her father recover a personal money judgment against the defendants, Powell & Gage, for .$125, the proceeds of the sale made by the execution in the former suit, and that Powell & Gage recover against her and her father the sum of $260, the original debt owing by her mother. Both parties excepted to this judgment and gave notice of appeal, but none was ever perfected, and the judgment became final. It is to be noted that the suit in this case was filed against Powell & Gage two years after E. M. Powell had sold the land in question to the Western Land & Live Stock Association. Thereafter Fannie A. Hecker-man, through her father and next friend, filed another suit in trespass to try title against the Western Land & Live Stock Association to recover the same land. The court, Speaking of the former judgment of the court in the case of Powell et al. v. Heck-erman et al., as res adjudieata of the issues in the present case, said:
“Having recovered the proceeds of the sale, she should not also be allowed to recover the land, unless the fact that the Western Land & Live Stock Company, to which Powell had previously conveyed the land by deed of general warranty, was not made a party to that suit, prevents the judgment therein from operating' in its favor. The effect of a judgment in such a case was to some extent considered by us, but not passed upon, in the case of Vaughan v. Foster (decided January 24. 1894, but not reported by order of the court). We there recognize the doctrine that ordinarily an estoppel, to be effectual, must be mutual. The live stock company, not having been made a party to that suit, could not have been bound by the judgment therein, and it would seem to result that it should not, for that reason, derive any benefit by way of an estoppel therefrom.”
The court, however, in that case, upon the authority of Kramer v. Breedlove, held that the judgment in such a case inured to the benefit of the grantee in a deed with general warranty made prior to the suit and recovery by the grantor, and allowed such judgment as res adjudieata of the claims of Faimie Heckerman in said latter suit. Unless this case can be distinguished from the instant ease upon the grounds that it was a personal money judgment rendered against Powell in the former litigation between Powell and Heckerman, and for that reason I-Ieekerman could not recover another judgment different in kind and character, decreeing to her the recovery of the land, and thus have two judgments on the same subject-matter, in her favor, we cannot follow it. If the intention of said case is to hold that a judgment inures to the benefit of a grantee in a deed under general warranty made and delivered prior to the' suit and recovery by the grantor, it is out of harmony with the general doctrine on that subject, and establishes a doctrine not sanctioned in principle or authority.
[10] It is not necessary, under the plea of not guilty in an action of trespass to try title, to plead estoppel before it can be urged as a defense. Hoodless v. Winter, 80 Tex. 638, 16 S. W. 427; Scarbrough v. Alcorn, 74 Tex. 358, 12 S. W. 72; Eddie v. Tinnin, 26 S. W. 732. Therefore appellant’s attack on the federal court judgment upon the theory that it was not pleaded, and therefore .could not be used as an estoppel, is not well taken.
[11] On the 5th day of December, 1914, it would appear that the Texas Pine Land Association, through its two trustees, made a second deed to the league of land in controversy to the Houston Oil Company. Why the Houston Oil Company sought this deed is not made clear by the record, unless it was done under the belief that the Texas Pine Land Association had acquired some sort of a title or interest under the federal suit which did not pass under the former deed. Not having any interest in the subject-matter litigated in the federal court, as hereinbefore determined, the ‘Texas Pine Land Association acquired nothing under that judgment, and therefore had nothing to convey under the execution of the latter deed. Even if it be conceded that the judgment in the federal court vested the Texas Pine Land Association with the estate and interest of the Beresfords by reason of the judgment, certainly such interest inured to the benefit of the Houston Oil Company under the deed of 1901. In our opinion, the second deed could not add anything to the doctrine of estoppel in favor of the Houston Oil Company. The doctrine of estoppel is an incident to some right or title, and had no independent existence of such right or title. We see nothing, therefore, in the execution of the second deed that can add anything to said doctrine.
Appellant’s ninth and tenth assignments of error are in part sustained, for the reasons herein stated.
Coming to the second material question in the case, we proceed to determine whether or not the record requires a submission to the jury of the question of the forgery of the deed from Montgomery to Moon.
[12] At the outset appellees object to our consideration of appellant’s assignment of error No. 1, which assignment is as follows:
“The court erred in not directing a verdict for the defendant Village Mills Company, for this: The defendant, established a good and perfect title from the sovereignty of the soil to the land in controversy in this suit, and plaintiff has wholly failed to establish title: (a) By the purported deed from D. C. Montgomery to Samuel Moore, the execution of which is not proved.”
The objection to the consideration of said assignment, among other things, is as follows:
“That the trial court was not requested to direct a verdict for the defendant Village Mills Company, but, on the contrary, the defendant requested the trial court in writing to submit this cause to the jury on special issues.”
*794It does not appear from the record that the trial court was requested to direct a verdict for the appellant, and therefore, in that state of the case, appellant is in no position to predicate error in that respect.
[13] The second assignment of error, however, presents clearly the question of forgery of the purported deed from D. C. Montgomery to Samuel Moore, of date June 5, 1838. This deed appears to have been witnessed toy Thomas Moore and William Cartwright, and to have been acknowledged before G. Y. Lusk, chief justice and ex officio notary public in and for Shelby county, Republic of Texas, on June 10, 1838, and recorded in Menard county on March 22, 1841, and recorded in Hardin county on February 28, 1859.
[14] The filing of the affidavit of forgery put the burden of proving the execution of this deed upon the appellees, and it becomes necessary to inquire whether a sufficient predicate was laid authorizing the introduction of such a conveyance, and especially a certified copy thereof.
[15] Enc. Evidence, pp. 206, 207, states the general rule covering the introduction of secondary evidence of deeds as follows:
“Before secondary evidence of the contents of an alleged deed is competent, its existence as a deed must be sufficiently proved and its loss or absence satisfactorily accounted for. And the logical and proper preliminary proof is to show: First, its existence; second, its valid execution; third, its delivery and acceptance; and, fourth, to account for its nonproduction, after which evidence of its contents is proper.”
The appellees filed their affidavit of diligent search for the original deed, and that the same was lost, and supported this affidavit by evidence which we think sufficient to meet the requisite of the rule accounting for its nonproduction.
[16] On the issue of the existence of the deed the appellees offered in evidence an original receipt from the clerk of the county court of Hardin county, Tex., reading as follows:
“State of Texas, County of Hardin.
“Received of Thomas S. Word, of the county of Anderson, the following- deeds for record in this county, and which I, as the clerk of the county court of said county of Hardin, promise to record as the law directs, to wit: (1) A deed made by D. C. Montgomery to Samuel Moore, of date 5th June, Í838, for the league of land granted to the said Montgomery on the west bank of the Neches river on or about the 29th of August, 1835, which deed is witnessed by Thomas Moore and W. Cartwright, and is duly acknowledged before G. Y. Lusk, chief justice of the county of Shelby and ex officio notary public, on the 10th of June, 1838, and duly recorded in Menard county by James B. Arnette, clerk of the county court, on the 22d day of March, 1841. [Here follows description of two other deeds to O. C. Nelson and S. P. Bankston.]
“[Signed] W. F. Cotton, Clk. C. C.,
by His Wife, M. A. Cotton.
“This 11% o’clock a. m. February 14, 1859.”
Indorsed on back:
“W. F. Cotton receipt for (1) I). C. Montgomery ; (2) O. C. Nelson; (3) S. B. Bankston deed."
The fact that the deed was registered in Menard county in 1841 is another circumstance of its existence. It seems to us these two circumstances meet the second requisite of the rule.
[17,18] The fact that the deed was recorded raises a presumption of its delivery. Holmes v. Coryell, 58 Tex. 688. And evidence of the claim under it and subsequent transfers of title emanating from said deed are circumstances showing its acceptance. This meets the third requisite of the rule. There is much evidence pro and con on the execution of the instrument. One of the circumstances relied upon by appellant to cast suspicion upon the deed in question as a forgery is a contention by it that at the time the acknowledgment of said deed was taken by G. V. Lusk as chief justice and ex officio notary public of Shelby county he did not, in fact, hold such office: that he was only chief justice of Shelby county from February 4, 1839, to December 15, 1840, and in support of this contention they introduce a certificate from the secretary of state that:
“I do hereby certify that the records of this department show that George Y. Lusk was appointed chief justice in and for Shelby county, Republic of Texas, on February 4, 1839, and that his term expired on the 15th of December, 1840.”
This certificate does not undertake to say that Mr. Lusk was not chief justice of Shelby county at the time and prior to his appointment on February 4, 1839.
The Journal of the House of Representatives of the Republic of Texas, First Congress, First Session, page 283, shows that on December 16, 1836, the two houses, being in joint session, proceeded to the election of chief justices, and that:
“Mr. Pennington nominated Mr. George V. Lusk for the county of Shelby, and, there being no other nominations, the Speaker announced Mr. Lusk duly elected chief justice of county of Shelby.”
“The Secret Journal of the Senate” shows that on December 20, 1836, President Houston nominated, and the Senate confirmed, Mr. George Lusk as chief justice of Shelby county. As a matter of historical interest, it will be remembered that President Houston claimed the right to nominate the chief justices, but Congress claimed the right to elect them. Both, however, seem to have acted in the election and appointment of Mr. Lusk. It appears from the records of the proceedings of the First Congress that the office of chief justice of a county was created by act of December 20, 1836, and providing for a tenure of four years. 1 GammeH’s Early Laws, p. 1208. Under the terms of that act, it was provided:
“For the creation of county courts to be composed of one chief justice, who shall be elected by joint ballot of both houses of Congress.” Id. 1208.
Under section 34 of that act the chief justices of the several county courts were constituted ex officio notaries public, and author*795ized to take proof or acknowledgments. Volume 1, p. 1215, Gammell’s Early Laws.
Even though the record shows there may have been some irregularity in the election of Mr. Lusk, still it can hardly be urged that that fact cast any suspicion upon the deed in question or in the remotest degree could be used as a circumstance to prove forgery of that instrument. In this connection it is further contended that, if G. V. Lusk did take the acknowledgment of the deed, he was not authorized at that time to do so, that “the chief justice was first authorized to take the personal acknowledgment of the grantor to a deed on January 19, 1839, and that prior to that time the personal acknowledgment of a grantor could only be taken by the county clerk of the county where the deed was to be recorded.” Paschal’s Digest, arts. 4973, 4974.
Mr. Houk, in his work on Written Instruments of Texas (section 852), referring to the power of chief justices to take acknowledgments, says:
“From the following statutes it appears that from December 20, 1836, to March 17, 1841, chief justices were authorized to take any and all acknowledgments of instruments to be recorded anywhere.”
However, even conceding that there may have been some technical question under the laws of that date as to the power of chief justices to take acknowledgments, still Act Feb. 5, 1841, § 20, Congress of the Republic, cured this defect; the same being passed for the specific purpose of validating such acknowledgments. In construing these statutes, our Supreme Court has specifically held that an instrument acknowledged at the time and in the manner of the one in the instant case was sufficiently authenticated to admit it to record. Butler v. Dunagan, 19 Tex. 565; Waters v. Spoffard, 58 Tex. 115; Wilson v. Simpson, 68 Tex. 313, 4 S. W. 839. There is no merit in appellant’s contention upon these specific points.
There are a number of other circumstances in the record, conflicting and otherwise, introduced by both appellant and appellees, affecting the valid execution of said deed, and it would serve no purpose to burden this opinion with any detailed reference to such testimony.
[19] It may be conceded that the age of the deed, 77 years, the registration of same, and the certified copy of the original recorded in Menard county in 1841, and in Hardin county in 1859, taken in connection with the long and continuous assertion of claim thereunder, and the presumption which is indulged in favor of innocence of crime, were sufficient to meet and overcome the burden of proving the genuineness of said deed cast upon the appellees by the affidavit of forgery filed against it by the appellant, and that it devolved upon the appellant to meet this prima facie proof of the validity of said deed. Holmes v. Coryell, 58 Tex. 680; Word v. Houston Oil Co., 144 S. W. 334. The record shows that appellant sought to do this by introducing circumstances hereinbefore generally referred to, and we think them sufficient to raise a fact question for the jury, and believe that the question of the validity of such deed should have been submitted to the jury under appropriate instructions.
[20] There are many questions raised by appellant affecting appellee’s claim to the land under the statutes of limitation, and to consider them in detail at this time would unduly prolong this opinion. A careful examination of the evidence, however, fully convinces us that title under such statutes was not established by the uneontroverted testimony in the record in favor of appellee and those under whom it claims as would sustain a peremptory instruction. There are many controverted issues of fact as to whether the tenants of the appellee and those under whom it claims exercised and claimed the right of their alleged possession for the continuous periods required by the statutes, whether such claims were made for their lessors or for themselves during all of such time, whether the possession extended to the entire league, or only to segregated parts, and whether the possession was of such a nature, under all the facts and circumstances, as to give notice of its adverse and hostile character. The evidence, we think, presents questions of fact to be determined by the jury under appropriate instructions. If appellant desired the case submitted upon special issues, it has the right, under the statute, making a seasonable request therefor, to have the jury render its verdict in that way, and, of course, the court will submit the cause as requested, and under such instructions as he thinks should be given to properly present the issues involved.
All other assignments of error, except the third, which is not considered for the reason that it is based upon a failure to give a peremptory instruction in favor of the defendant, when no such instruction was requested of the court, and which are not otherwise disposed of by the disposition made of this case, are overruled.
This case will therefore be reversed and remanded; and it is so ordered.
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