From the statement of the case made in the majority opinion it is apparent that if title passed from Charles H. Howard, the admitted owner in 1874, to John E. McBride, prior to the latter's death in 1877, then plaintiffs, as the heirs of McBride, must recover, since the deed from Kerber, administrator pro tempore of McBride's estate to Ford, passed no title, being manifestly void, and is so admitted to be by appellee.
Appellants advance the proposition that Howard and McBride each appear to be a common source of title, and since McBride is the later, the presumption of fact arises that McBride, prior to his death, had acquired the title vested in Howard in 1874. In support of this view we are referred to Rice v. Ry. Co., 87 Tex. 90, 26 S.W. 1047, 47 Am. St. Rep. 72, Cocke v. Ry. Co., 46 Tex. Civ. App. 363, 103 S.W. 407, and others. Under the condition of the chain of title, I do not consider these cases as authority in support of the broad contention made, but that the correct rule is adverse thereto, and is declared in Ferguson v. Ricketts,93 Tex. 565, 57 S.W. 19; Starr v. Kennedy, 5 Tex. Civ. App. 502,27 S.W. 26; Story v. Birdwell, 45 S.W. 850; Stubblefield v. Hanson,94 S.W. 411.
I, therefore, concur in the action of the majority in its adverse disposition of this contention, but am of the opinion that appellant's fifth proposition, quoted in majority opinion, should be sustained and the cause reversed and remanded.
If Howard in the years 1875-1877 agreed in writing to convey to McBride the premises in controversy, and the same were fully paid for by McBride, but Howard died December 17, 1877, without having conveyed the *Page 828 same in accordance with the terms of his agreement, then the paramount equitable title passed to McBride and his heirs, and there remained in Howard and his heirs only the bare subordinate legal title; and such equitable title of McBride was sufficient to support an action of trespass to try title. Secrest v. Jones, 21 Tex. 121; Stafford v. Stafford, 96 Tex. 106, 70 S.W. 75; Kirby v. Cartwright, 48 Tex. Civ. App. 8,106 S.W. 742; Neyland v. Ward, 22 Tex. Civ. App. 369, 54 S.W. 604.
That the equitable title did so pass to McBride is shown by the recitals in the order of the probate court in Howard's estate, directing the administrator to convey the premises to Ford, and in the deed of the administrator made in compliance with and quoting such order. Burk v. Turner, 79 Tex. 276, 15 S.W. 256; Wallace v. Pruitt, 1 Tex. Civ. App. 231,20 S.W. 728; Peters v. Clements, 46 Tex. 115; Fisk v. Flores, 43 Tex. 340; Merriman v. Blalack, 56 Tex. Civ. App. 594, 121 S.W. 552; Zarate v. Villareal, 155 S.W. 328; Williams v. Chandler, 25 Tex. 4; Gonzales v. Batts, 20 Tex. Civ. App. 421, 50 S.W. 403; Hardy v. De Leon, 5 Tex. 211; Bartell v. Kelsey, 59 S.W. 631; Skov v. Coffin, 137 S.W. 450; Kirby v. Cartwright, 48 Tex. Civ. App. 8, 106 S.W. 742; 1 Greenleaf on Ev. § 23; 2 Wigmore on Ev. § 1257, subd. 3, and section 1082. This order of sale and administrator's deed to Ford is quoted in the majority opinion.
The authorities noted firmly establish the principle that recitals in deeds are at least prima facie evidence of the truth of the facts stated against all parties claiming under the same. In some instances, such recitals rise to the dignity of an estoppel. The distinction which in some instances accords to them such an effect and in others treats the same as merely furnishing prima facie evidence of the truth of the facts recited, which is subject to rebuttal, may be noted in Wallace v. Pruitt, supra, Williams v. Chandler, supra, and 2 Wharton on Ev. § 1040, but is of no importance, as it may readily be conceded that an estoppel does not here arise, but this circumstance in no wise militates against their probative force from an evidential viewpoint.
Neither do I see any ground for the distinction made by the majority in refusing to give the proper probative force to these recitals, because contained in a probate order and administrator's deed, rather than an ordinary deed between individuals. Since Loomis claims under this order and deed, the probative force of the adverse recitals therein becomes effective regardless of the character of the instruments.
The record discloses that appellee Introduced the same in evidence without any limitation or qualification, together with the mesne conveyances from Ford to appellee Loomis. Loomis had no shadow of title, except under Ford, until September 20, 1907, when he obtained a quitclaim deed from Howard's heirs and a large portion of the statement of facts is taken up by evidence offered by him in an effort to prove title under the five-years statute of limitation based upon the deeds under Ford. Much evidence was offered of possession by his immediate and remote vendors, Seaberg, Hunt, and others, who claimed alone under deed from Ford, in 1881, and when Seaberg conveyed to Loomis on January 5, 1906, this was the only record title which he had. If appellee claimed under Ford, the probative force and effect of the recitals mentioned is not avoided, simply because an estoppel had not arisen, or the order and deed were invalid.
For the reason indicated, I think the cause should be reversed and remanded.