On Motion for Rehearing. Appellants in their motion for rehearing request that it be made clear that, while W. W. Robinson was named as one of the grantors in the deed of December 5, 1874, purporting to partition to Dowell and Miller the west one half of the 2489-acre tract in question, Robinson, neither in his capacity as guardian, nor as an individual, signed same. It was not so stated in the original opinion, and we hardly think it may be reasonably implied therefrom that he did so sign same. He did not sign said deed either as guardian or individually.
This deed was introduced by appellants without restrictions. It established by its recitals, we think, that prior to the execution of that deed, Dowell and Miller had an undivided one-half interest in the entire acreage — it is true, an equitable estate only; further, that it was acquired by the performance of services in connection with acquiring the legal title to the entire acreage for the Yoakum heirs. The certificate *Page 940 by virtue of which the land was acquired was not land, it was not an interest in land; it is a mere right to acquire land by complying with the applicable law.
Neither Robinson, the guardian, nor his wards were bound by the location of this certificate. The Robinson heirs jointly owned an undivided one-fourth interest therein; they acquired legal title by ratification and acceptance of the location of the certificate for their benefit.
It is conceded that the aforesaid deed of December 5, 1874, localized the title of Dowell and Miller in the western half. But appellants contend that their undivided interest in the entire tract of 2489 acres was unaffected thereby save that it was located in the eastern half of the tract; further, the acreage being of uniform value, they were entitled to 622 acres out of the undivided eastern half of the tract. In short, their co-tenants should bear the entire burden of acquiring legal title to the property. This is clear: In the event the deed localized the interest of Dowell and Miller in the west half of the tract, it localized the interest of appellees and appellants in the east half. This deed was a partition deed and shows on its face that it was such.
The case of House v. Brent, 69 Tex. 27, 7 S.W. 65, is cited in support of the position that appellants, while benefited by and ratifying the acts of the locators, should not bear their portion of the burdens incident to acquiring the title. In that case the deed to the locator containing the recitals as to the contract was excluded from evidence. The evidence did not establish a contract by the locator with any of the joint owners of the certificate for an interest in the land obtained. Here, this is not the case. The deed reciting the contract was introduced in evidence by appellants — introduced as a whole without limitation. It was in a way a necessary link in the chain of title. Thereby it was sought to show that the interests of appellees' predecessors in title in the 2489 acres had been satisfied in full. It is true that the patent invested these minors with the legal title to an undivided one fourth of the 2489 acres, provided, of course, they acquiesced in the location of the certificate on this land. In obtaining this title, the equitable title to an undivided 1244.5 acres had been used. Appellants assert they should take their title free from the burden entailed in acquiring same. It is not believed that such a holding is required by either law or equity. Appellants cannot assert the validity of the deed to divest appellees' title, and in the same breath repudiate same as affecting theirs. The difference between this case and the case of House v. Brent, supra, lies in the fact that here the contract that the locator was to have an undivided one-half interest was proven; there, the proof in this respect failed.
It is said that the partition deed joined in by the guardian is void. By this deed a specific 311 acres was set aside for the minors and localizing their interest in the east one half of the 2489-acre tract. This assertion, in a sense, is true. However, appellants and appellees agree this acreage was of equal and uniform value. In our opinion 311 acres was the proportion to which appellants were entitled. Their guardian made a valid sale of this 311 acres. It is to be presumed on such sale the value thereof was realized. So far as this record shows, the validity of such sale has never been questioned. Land theretofore purported to be conveyed to Warfield by Robert Yoakum was included in the deed. Warfield thereafter accepted 311 acres in the northeast corner of the tract as a satisfaction of his equity under his prior deed from Robert Yoakum.
Many of these transactions took place over sixty years ago, none of them less than thirty-five. Appellees have used and occupied the lands involved, paying the taxes thereon. Appellants, by their own failure to question same, are presumed as a matter of law to have acquiesced in the partitions evidenced by the record herein. Same became binding on appellants not by their own force, but by the action and non-action of appellants with reference thereto.
*Page 941It is ordered that the motion be in all things overruled.