follows that, as Hawley had no real interest in the land, he is not injured by the judgment of the court below. Hawley having no real interest in the land, and the iron company being a party to this suit, and not having appealed, we will not review the action of the court at the instance of appellant Hawley." This cause being before this court solely upon the appeal of R. L. Boese, a nominal party only, and it appearing that Ethel Boese, Ruth Vinton, and Mart Massey, who are the parties for whose benefit the suit was brought, were parties to the suit and not appealing, we will not review the action of the trial court at the instance of appellant R. L. Boese. 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 sought to have partitioned and set aside for said M. L. Womack, as such administrator, 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 court 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, The judgment of the trial court is affirmed. and that thereafter the said E. B. Bell did make Affirmed. On Motion for Rehearing. In our original opinion we held that this cause was before this court alone upon the appeal of R. L. 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. L. 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. 2547 James F. 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 the 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 a sale of the land in controversy, 1782 acres, described in the pleadings, and made his report to the court, in which he showed that he had sold said 1782-acre tract of land on December 4, 1896, to George W. Price, as appears by the Deed Records of Burleson county, vol. 15, p. 105, conveying said land. That the proceeds of such sale were partitioned in accordance with said decree, and the said M. L. tion allotted by the court to the said estate of Womack received as administrator the porH. 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 Price 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 court 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. judgment it was a simple suit brought by said J. F. Massey to partition 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 In my G. W. Price had his said deed recorded shortly after his purchase in December, 1896, and he and those holding under him, down to and including the present owner, O. V. Massey, have since said purchase held and used the same continuously to the date of this suit, on November 19, 1914, and have paid all taxes due thereon. Whatever title G. W. Price had to the land in controversy passed by mesne conveyances to, and is now in, appellee O. V. Massey. of the tract of land in controversy was in defendant O. V. Massey, and they further pleaded the three, five, and ten year statutes of limitation in bar of plaintiffs' right to recover in this suit. Plaintiffs by supplemental petition pleaded their disabilities as minors in avoidance of defendants' plea of limitation. The case was submitted to the court without a jury, who upon the pleadings and evidence found every issue in favor of defendants, and rendered judgment that plaintiffs take nothing by their suit and that defendants recover of plaintiffs all costs by them incurred. From this judgment, R. L. Boese, husband of Ethel Boese, alone has appealed. [1] It is apparent, from the brief filed in this court by counsel who represented the plaintiffs in the trial court, that they are laboring under the impression that all of the plaintiffs have perfected their appeal to this court. But such, we think, is not true. The only appeal bond found in the record is one executed by R. L. Boese alone, as principal, and Thos. C. Hall, M. G. Cox, and U. S. Hearrell, as sureties, which, after an attempt to describe the judgment rendered by the court, reads as follows: "Now, therefore, we, R. L. Boese, as principal, and Thos. C. Hall and M. G. Cox and U. S. Hearrell, as sureties, acknowledge ourselves bound to pay to Mrs. Nettie Massey Parkhill sum of two hundred and no/100 dollars; conand other defendants (appellees herein) in the ditioned, however, that the said Ethel Boese and other plaintiffs (appellants herein) shall prosecute their appeal with effect, and shall pay all costs which have accrued in the court below and which may accrue in the Court of Civil Appeals and the Supreme Court. On November 19, 1914, appellants Mart Massey, Ruth Massey Vinton, joined pro forma by her husband, Claude Vinton, and Ethel Massey Boese, joined pro forma by her husband, R. L. Boese, brought this suit against O. V. Massey, the present owner of the land in controversy, and others not necessary to mention, to recover a one-half undivided interest therein, upon the theory: That by the terms of the will of H. H. Massey, deceased, one-half undivided interest therein passed to their mother, Fannie Massey, during her life. and that by the terms of said will the fee to said one-half interest passed to plaintiffs herein Ruth Vinton, Ethel Boese, and Mart Massey. That in cause No. 2547 the court construed the will of said Massey as now construed by plaintiffs, and by a decree in said cause adjudged one-half of the land in question to be the property of plaintiffs. That M. L. Womack, administrator of the estate of H. H. Massey with will annexed, had no authority to bring, nor the district court of Burleson county to entertain and try, said cause No. 2596, and grant the relief prayed for, as was done in said cause, because: First, at the time said suit was filed and disposed of in said district court "Witness our hands this the 26th day of Noan administration of the estate of H. H. Mas-vember, A. D. 1915. R. L. Boese. Principal. sey was pending in the probate court of Bur-Thos. C. Hall, M. G. Cox, U. S. Hearrell, Sureleson county, and that said court had excluIt is apparent from the bond above mensive jurisdiction of said estate and was the only court which bad authority to order the tioned that it is not an appeal bond executed sale of property belonging to said estate for by any one except R. L. Boese, as principal, any purpose, and that, as said district court and that he is the only one of the plaintiffs had no authority to try said cause No. 2596 | in the court below who has perfected an apand to order the sale of said land as it did peal to this court in this case. do, the sale made by E. B. Bell, special commissioner, by order of said district court, was and is void and of no force and effect, and therefore the deed of said Bell to G. W. Price did not have the effect to convey the title to said land tc said Price; second, that as plaintiffs were not parties to suit No. 2596, and as they were the owners of an undivided one-half interest in said lands under the will of H. H. Massey and also under the decree in cause No. 2547, the sale made under the decree in cause No. 2596, if other wise valid, did not have the legal effect to divest plaintiffs of their title to said land, and that they are therefore still the owners thereof. Defendants answered plaintiffs' allegations by specially pleading the facts set out in the preliminary statement herein, and further ties." The pleadings of plaintiff and the undisputed evidence show that appellant R. L. Boese has no interest in the subject-matter of the litigation, except as the husband of his wife, Ethel Boese, and that he was joined with his wife in the suit only for the purpose of meeting the requirements of the law that in suits by a married woman she shall be joined by her husband. Appellant therefore is only a nominal party, without any interest in his own right in the subjectmatter of the litigation, and could not appeal. In the case of Hawley v. Whitaker, 33 S. W. 688, presenting practically the same proposition as here presented, it is said: "It appears from the foregoing facts that Hawley was a mere nominal party to the suit, as such interest in the land as was acquired by the conveyance from Cummings to Hawley was follows that, as Hawley had no real interest in the land, he is not injured by the judgment of the court below. Hawley having no real interest in the land, and the iron company being a party to this suit, and not having appealed, we will not review the action of the court at the instance of appellant Hawley." This cause being before this court solely upon the appeal of R. L. Boese, a nominal party only, and it appearing that Ethel Boese, Ruth Vinton, and Mart Massey, who are the parties for whose benefit the suit was brought, were parties to the suit and not appealing, we will not review the action of the trial court at the instance of appellant R. L. Boese. 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 sought to have partitioned and set aside for said M. L. Womack, as such administrator, 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 court 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, a sale of the land in controversy, 1782 acres, described in the pleadings, and made his report to the court, in which he showed that he had sold said 1782-acre tract of land on December 4, 1896, to George W. Price, as appears by the Deed Records of Burleson county, vol. 15, p. 105, conveying said land. That the proceeds of such sale were partitioned in accordance with said decree, and the said M. L. tion allotted by the court to the said estate of Womack received as administrator the porH. 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." The judgment of the trial court is affirmed. and that thereafter the said E. B. Bell did make Affirmed. On Motion for Rehearing. In our original opinion we held that this cause was before this court alone upon the appeal of R. L. 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. L. 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. 2547 James F. 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 the 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 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 Price 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 court 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. judgment it was a simple suit brought by said J. F. Massey to partition 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 In my children, 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. H. Massey, deceased, were properly decreed to be paid over to the said M. L. Womack, as administrator of the estate of H. 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 H. 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 H. H. 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 H. 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 vest 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. L. Womack, Administrator, et al., the land involved in this suit was decreed to plaintiff's 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. H. 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. [2] 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 H. H. Massey, deceased, is wholly untenable. That suit was one brought by James F. Massey, son of the first wife of said H. H. Massey, against M. L. Womack, administrator of said H. H. Massey's estate with will annexed, Mrs. Fannie Massey, the third and surviving wife of said H. H. 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 H. H. Massey. A decree was entered in said cause setting 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. fourth of said property, and to the admin- that were pleaded in that case by the adistrator of H. H. Massey and the other de- ministrator; would there have been any fendants the other three-fourths thereof in question as to his right to bring such suit? bulk. By the decree of partition in said Of course not. That being true, then, in our cause there was set aside to defendants Wo- judgment, article 1836, supra, would be mack, administrator, and others, three sep-meaningless if it does not confer the same arate tracts of land, first, the 1782 acres, called the old homestead in the will of H. H. Massey, being the tract involved in this suit, a part of the S. C. 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. [3] 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. 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 executhe court so order, and the proceeds thereof tion, or by private sale through a receiver, if 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 mesne conveyances from Price, now has title to said land. [5] We also conclude that the trial court correctly found and held that appellee has title to the land in question under the tenyear 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 at 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. [4] It is provided by article 1836 of the Revised Civil Statutes that suits for the The evidence shows the land was conveyed possession of lands may be instituted by ex- by Bell, special commissioner, to G. W. Price ecutors, administrators, or guardians ap- by his deed of date December 11, 1896; that pointed in this state, in like manner as they Price took possession of said land immediatecould have been by their testator or intes-ly after his purchase in 1896, during the life tate; and that judgment in such cases shall of Mrs. Fannie Massey, who died some seven 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, 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, |