GRAVES, J.
On February 23, 1901, W. F. Arnold and Kate Arnold, his wife, were occupying as part of their homestead 81½ acres of land in the northeast part of the J. H. Bell league in Brazoria county, Tex. On that date they executed and delivered to John C. Underwood the following contract or conveyance affecting the 81½ acres:
“The State of Texas, County of Brazoria.
“Know all men by these presents: That L W. F. Arnold, of Brazoria county, Texas, the party of the first part, in consideration of the sum of $1.00 paid by John C. Underwood, party of the second part, the receipt of which is hereby acknowledged, and the further consideration hereinafter mentioned, have granted, bargained, sold and conveyed, and do by these presents grant, bargain, sell and convey, unto the said party of the second part, heirs and assigns, all of the oil, gas, and coal, and other minerals in and under the following described land, together with the right of ingress and egress at all times for the purpose of drilling, mining-, and operating for minerals, and to conduct all operations and lay all pipe necessary for the production, mining, and transportation of the oil, gas, water, coal, or other minerals, with the right to use sufficient water, gas, or oil to operate said property, and shall have the right to remove all machinery, fixtures, and improvements placed thereon at any time, reserving, however, to the party of the first part the equal one-tenth of all oil produced and saved upon said premises, to be delivered in the pipe line to the credit of the party of the first part free of charge. If coal is found, the parties of the second part agree to pay the first party four cents per ton for every ton of the same that is mined and marketed, payable quarterly; if gas or other minerals are found, second parties agree to pay the first party one-tenth for the product each year, payable quarterly for the product of each well, while the same is being used off the premises; and the party of the first part by furnishing his own pipe and connections shall have sufficient gas free of cost for use in one dwelling house on
the premises, so long as gas is utilized off the premises, but at his own risk. Whenever first party shall request it, second party shall bury all oil and gas lines and pay all damage done to the growing crops by reason of burying and ¡removing the same. No well shall be drilled within 200 feet from any building now on said premises without the consent oí the first parity. Said land being of the following description, to wit: In the league of land originally 'granted to Josiah H. Bell in said Brazoria •county, Tex., fully described in deed of John 'Q. Jackson to me, which said deed is recorded in Book M, pages 142 and 143 of the deed records of Brazoria county, Tex., reference to which is hereby made for a full description of said land, containing eighty-one and one-half ■ reres, more or less.
“To have
and to
hold the above-described premises, unto the said parties of the second part, their heirs and assigns, upon the following conditions: In case operations for either the drilling of a well for oil, gas, ot other minerals is not commenced and prosecuted with due diligence within two years from this date, then this grant shall immediately become null and void as to both parties; provided that said second party may prevent such forfeiture from year
to year by
paying to the first party the sum of $10.00 per year until such well is commenced or until shipments from such mine have begun, and it is agreed that the completion of a well shall operate as a full liquidation of all rental under this provision during the remainder of the term of this lease, which payments can be made at the Bank of- or payable direct to the party of the first part.
“In case the parties of the second part should bore and discover either oil or other minerals, then in that event this grant, incumbrance, or conveyance shall be in full force and effect for twenty-five years from the time of the discovery of said product, and as much longer as oil, water, gas, or other minerals can be produced in paying quantities thereon. Whenever sales are being made of the product produced on the land above described, a settlement thereof shall be made at the end of each quarter. This grant is not intended as a mere franchise, but is intended as a conveyance of the property above described for the purpose herein mentioned, and it is so understood by both parties to this agreement. It is understood between the parties to this agreement that, all conditions between the parties hereunto shall extend to their heirs, executors, administrators and assigns. It is agreed and understood that there shall be no interference with my farming operations unless full remuneration shall bé paid to me for such interference.
“Witness our hands this twenty-third day of February, 1901
“[Signed] W. F. Arnold.
“Kate Arnold.
“Jno. O. Underwood.”
Subsequently, on November 1, 1901, one of Underwood’s assignees reconveyed or released to the Arnolds 5 acres out of the 81½-acre tract, leaving 76½ acres as the net effect of their conveyance to Underwood.
By later transfers, assignments, and other means not material here, whatever rights and interests in this net 76½ acres that passed to Underwood under the instrument between him and the Arnolds vested in the appellants in this case, and all their claims in this suit are referable to and based upon it.
Afterwards Arnold and wife, ignoring this pre-existing contract or conveyance they had made to Underwood, which had been shortly after its date duly recorded, by deeds dated, respectively, November 21, 1906, December 11, 1908, December 26, 1908, and August 26, 1917, each of which acknowledged the receipt of a good and valuable consideration, and had been shortly after its date duly recorded, conveyed in different parcels the whole of the fee in the entire 81½ acres to certain persons, all of whose interests thereafter passed to and became vested in the appellees in this cause, and upon their rights as therein and thereby acquired the appel-lees depended as against the title and interests asserted in the 70½ acres of land by appellants.
Arnold and wife were therefore the 'common source of title between the rival claimants, and that fact was shown and the cause was tried below upon that theory.
Appellants on May 8, 1919, in the form of trespass to try title, brought this suit against the appellees to recover “all of the oil, gas, coal, or other minerals in and under” the 76½ acres of land referred to, which they claimed to own in fee simple, together with certain surface rights, including the right of ingress and egress for mining purposes, subject, however, to certain specified reservations, among them one-tenth of all the oil produced and saved upon the premises.
The appellees, who were the defendants below, answered with pleas of not guilty, and specifically pleaded the further defenses relied upon, which included limitation, estoppel, and innocent purchaser. All of them except McGary further set up a cross-action by which they sought a rescission and cancellation of the instruments under which the appellants claimed title.
The cause was tried before a jury, and at the close of all the evidence the court peremptorily directed a verdict in favor of the appellees, which was duly returned, and thereupon judgment that appellants take nothing by their suit, and that the appellees have in their favor a cancellation of the instruments o'f title declared upon by appellants followed. From that judgment this appeal proceeds.
It was evidently the view of the trial court that this grant from Arnold and wife to Underwood in legal effect was a mere option or right to prospect upon the land and did not invest Underwood or his assigns with the legal title to “the oil, gas, coal, or other minerals in and under the land,” and that the long nonuser by them of'the property, which is hereinafter more fully referred to,
operated as a forfeiture or abandonment of any right they might originally have had under that instrument, and such is the contention of the appellees upon' this appeal.
The appellants, upon the other hand, insist that there passed to Underwood and his assignees by that instrument, and as a result of their substantial performance of all obligations and duties incumbent upon them thereunder, an interest in the land itself to the extent of “all the oil, gas, coal, or other minerals in or under the land,” subject to a reservation of one-tenth of all oil produced and saved upon the premises, and that they showed a regular and sufficient chain of title to it as such, first in time and superior in right, under the common source.
Apart from this difference between the opposing litigants as to the intrinsic nature and consequent legal effect of the quoted contract, the further claims urged in their briefs by the appellees of a failure of right or interest in appellants are: (1) That a release executed January 5, 1909, by A. J. Eilers reinvested the Arnolds with all such title, if any, as at that time remained in the Equitable Mining Company; (2) that appellees and those under whom they claimed were innocent purchasers of the land for value without notice of the claims subsequently asserted by appellants; and (3) that under the facts developed appellants were estopped to claim the conveyance to Underwood to be still in effect.
Since the situation here presented, except in so far as it may be affected in whole or in part by the Eilers release, is regarded as one dependent upon the construction that should be given the Arnold-Underwood conveyance in the light of what the facts show was or was not done under and pursuant to it, rve first proceed to a consideration of that release. As stated, it bore the date of January 5, 1909, was signed and' acknowledged on the same date by A. J. Eilers as president of the Equitable Mining Company, using the corporate seal, and in its body carried the recitation:
“Now, therefore, know all men by these presents that the Equitable Mining Company, a private corporation, duly incorporated under the laws of the state of Texas, acting herein by its president, A. J. Eilers, who is duly authorized”
—but for some reason was not put of record until more than nine years later — that is, .not until April 1, 1918. In terms it referred to the Arnold-Underwood grant, of February 23, 1901, denominating it an “oil lease,” declared the same to be null and void, and, without reciting a consideration of any sort, purported to discharge and release the land it covered from its provisions.
[1,2]
In the first place it must be noted that the Equitable Mining Company, one of the predecessors of appellants in title, by the undisputed proof, at that time did not own but an undivided two-thirds interest in the property under Underwood, the other like interest of one-third being then outstanding in the Arnold Oil Company, another of appellants’ predecessors. Obviously such release could not affect the latter interest. For reasons just as potent, we think it was equally futile against the twó-thirds interest of the mining company. That company, which was a private corporation under the laws of Texas, had some years before, on July 1, 1905, forfeited its right to do business on account of failure to pay its franchise tax. This being its condition on January 5, 1909, by the express provisions of our statute (Sayles’ Texas Civil Statutes, Supp. 1900, arts. 6243i, 5243j, as amended in 1905), the corporation was forbidden to transact any business, and if the making of the release was an act of business, which it plainly was, Eilers, as an agent or officer, could not lawfully do for it what his principal was without legal capacity to do for itself.
[3, 4]
Furthermore, we think it clear, under the .facts shown, that Eilers was wholly without the power to do what the purported release is claimed to have accomplished. As the president of a private corporation, years alter it had forfeited its right to do business under the laws of both its origin and domicile, for no consideration of benefit to his principal, he assumed to give away in behalf of the corporation very valuable property rights without other justification than his own voluntary ipse dixit that its title had failed. On this trial stockholders of the mining company quite generally testified that they had never consented to the release, never knew of its existence until shortly before the filing of this suit, and that, so far as they had ever heard or known, there had never been any action of the company’s board of directors with reference to the matter. There was no evidence that any other stockholder or director than Eilers himself ever participated in the execution of or had any knowledge concerning this paper until about the commencement of this litigation, and the circumstances which were shown to have attended its procurement repel any inference that there ever was any action touching it by the corporation’s governing body. In this condition of affairs it is a matter of no legal consequence that the individual who issued it did so by attaching the corporation’s seal and recited that the corporation was acting through him. The resulting situation is not. a mere matter of evidence, or of the burden of proof, as to the existence or not of authority in the president of a corporation to formally execute under its seal a transfer in regular course of its business, which, under well-settled authority (Cook on Corporations [7th Ed.] vol. 3, p. 2550; Catlett v. Starr, 70 Tex. 485, 7 S. W. 844; Railroad v. Davis, 93 Tex.
378, 54 S. W. 384, 55 S. W. 562; Magee v. Paul, 159 S. W. 328), will prima facie be presumed, but, by uncontroverted proof, presents an instance of the assumption by such an officer of unusual, exceptional, and extraordinary power, clearly outside the ordinary course of affairs and beyond his apparent or ex officio authority.. Under equally as firmly established principles, it devolved upon those claiming rights by virtue of the exercise of that power “to inquire as to its existence and as to the facts which bring it into being.” Fitzhugh v. Land Co., 81 Tex. 306, 16 S. W. 1078; Land Co. v. McCormick, 85 Tex. 416, 23 S. W. 123, 34 Am. St. Rep. 815; Cook’s Corporations, vol. 2 (6th Ed.) § 681, p. 2055; Mechem’s Agency (2d Ed.) vol. 1, §§ 817, SIS, and 827; Harbor Co. v. Manning, 94 Tex. 558, 63 S. W. 627.
The attempted release being then inoperative and invalid as to all the appellants, the conclusion logically follows that, in so far as grounded upon it, the pleas of innocent purchaser and estoppel were abortive. Mast v. Tibbles, 60 Tex. 307; Moss v. Berry, 53 Tex. 632; Lumber Co. v. Hancock, 70 Tex. 312, 7 S. W. 724; Watts v. McCloud, 205 S. W. 384.
The issue as to whether there was a proper basis in- the other facts shown for these two last-mentioned 'defenses being, in our opinion, closely interwoven with the major question in the cause, that is, what effect should be given the original grant to Underwood, recurrence is now had to that matter.
[5]
We think that instrument, attended and followed — as it undisputedly was shown to have been — by a substantial performance of its drilling terms, an accomplishment brought about with the knowledge and approval of its grantors, the Arnolds, and at an expenditure by the grantee’s assigns of about 330,000, vested in Underwood and his assigns the legal title in fee to “all the oil, gas, and coal, and other minerals in and under” the 76½ acres of land in question, subject to a reservation of one-tenth of all oil produced and saved upon the premises for the period of 25 years, and as much longer as such minerals can be produced thereon in paying quantities.
Looked at from its four corners; that is apparently not alone the plain import of the simple and direct language used, but, if recourse be had to the circumstances surrounding the parties at the time of its making and their own immediately succeeding acts in interpretation of their intent and meaning in entering into the contract they did, that result seems to follow as a reasonable, if not necessary, inference.
With us in Texas all such theories as that oil and gas are of too errant a nature to be-sóme the subject of a title in fee, or that the time designated as “25 years and as much longer as oil and gas can be produced in paying quantities” would not constitute such a title one capable of indefinite duration, or that, there being only a term of years expressed, a chattel interest only, and not a title in fee, would pass, have been authoritatively discarded (Texas Co. v. Daugherty, 107 Tex. 226, 176 S. W. 717, L. R. A. 1917F, 989, and citations there noted); so that, these parties having the undoubted right to so agree, what good reason can there be in this instance for saying that they did not intend to pass from one to the other an interest in the land itself when the words they chose were so apt for that purpose as to have become imbedded in the jurisprudence of all English-speaking peoples as the accepted medium for an actual conveyance of that character?
[6]
Quite true it is that mere words of conveyance alone, though apt and usual, will not fix the character of the estate that passes, if from the context of the instrument as a whole the plain intention of the parties was otherwise; but, in the absence of any such contextual indications, these chosen words will neither be disregarded nor given other than their usual meaning in the trade, business, or transaction to which they relate.
In February, 1901, West Columbia was upon the map of Texas chiefly as the cradle of her early struggles, not as the repository of untold millions of wealth in subterranean petroleum. By common knowledge, if not judicial cognizance, oil had at that time been found in but one place in all the commonwealth, the Lucas gusher having just been brought in at Beaumont, more than 100 miles away. This little rural homestead of the Arnolds was of, very small value for any known purpose, perhaps not so much as $10 per acre, and the procurement of a testing of it under such prevailing conditions for subsurface oil and fas may well have been the dominating thought with them in enlisting Underwood in the enterprise; in other words, it was then a strictly wildcat undertaking, and the real, the moving, incentive to the grantors must-have been the money and effort contemplated to be spent by the lessee in the attempt to prove it to be oil-bearing land, the small royalty reserved being a secondary as well as a purely contingent one. For that reason they were willing to and did presently in terms give up and convey “all the oil, gas, coal, and other minerals in and under the land,” reserving only one-tenth to themselves, but upon carefully particularized express conditions subsequent which would fully protect them by declaring a termination of the interest so granted him, in event their grantee did not thereafter do what was of necessity contemplated, though not by binding obligation agreed upon — that is, comply with the "drilling conditions specified.
Now, that Underwood and his assigns, as
already indicated, did to all substantial intents and purposes meet and comply with these conditions stands in this record uncon-troverted. Within a few months after receiving this conveyance from Arnold and wife, by assignment of his interest thereunder, he enlisted in the development of the property the Equitable Mining Company, the corporation hereinbefore referred to, and under it in turn others were interested in the un-’ dertaking, until by July, 1904, four wells had been drilled upon the property, about $30,000 in money had been spent in the work, and at least one well that produced oil in paying quantities had been completed and brought in on the 76½ acres. These actual operations for the drilling of a well for oil and gas were both commenced and prosecuted with due diligence, through the best drillers obtainable, within two years from February 23, 1901, this first one above mentioned as having produced oil in paying quantities (the second in which oil was found on the premises) being begun by the Arnold Oil Company in October of 1902, shortly after October 9th,'and sunk to a depth of 500 feet. From and after October 5), 1902, the Arnold Oil Company had joined' forces with the Equitable, and together, practically continuously, during the years 1901, 1902, and 1903, they with due diligence prosecuted the work until in all there had been the four wells drilled, at the total outlay stated, their depths running from 500 to 1,212 feet, this last one being regarded among the best operators at that time as a completed test of that territory for oil, since the usual depth for a well to be sunk in search of oil was then 900 to 1,050 feet only.
There was also evidence to the effect that the Arnolds were on the ground a great deal while this work was going on, knew of these operations and their results, were well satisfied with them, acquiesced therein, and in fact received royalties on this production from Underwood. In July, 1904, however, Underwood’s assigns stopped drilling on the land, and then came, beginning in November, 1906, the transfers covering the same property from Arnold and wife to other parties hereinabove mentioned, under whom the ap-pellees here claim and hold.
Pursuant thereto and soon after the dates thereof, such grantees or their assigns took possession of the surface only of the different tracts so conveyed to them, which embraced the entire 76½ acres in question, and used it for farming and grazing purposes until March, 1918, regularly paying the taxes on it during that period, when the appellee Texas Company began drilling operations thereon for oil.
It was further shown that from the time Underwood’s assigns ceased drilling on this land in 1904 down until December, 1918, there was practically continuous drilling on adjoining tracts, without any paying results. On this last-mentioned date the Humble Oil Company brought in a paying well on a contiguous tract, and on January 3, 1919, the Texas Company, one of these subsequent grantees from the Arnolds, brought in a gusher on this Arnold tract. Then followed the filing of this suit on May 8, 1919;
[7]
At this point it conclusively • appears that no limitation operated to bar the rights of appellants, because there was for the length of time required no adverse possession, cultivation, use, or enjoyment of the subsurface land, since possession of the outer surface only is not that of the minerals beneath. Luse v. Parmer, 221 S. W. 1031; Northcut v. Church, 135 Tenn. 541, 188 S. W. 220, 223, Ann. Cas. 1918B, 545, and cited authorities; Manning v. Coal Co., 181 Mo. 359, 81 S. W. 140, 145; Thornton’s Law of Oil and Gas (3d Ed.) vol. 1, §§ 334, 335.
Under the peculiar wording of this grant, in the light of these attending facts and circumstances, the view that an interest in the land as such passed to Underwood, at least on his compliance with the drilling conditions, rather than a mere leasehold right or option 'to prospect upon it, seems to us inevitable under the latest and most authoritative pronouncement of our Supreme Court in Texas Co. v. Daugherty, 107 Tex. 226, 176 S. W. 717, L. R. A. 1917F, 989, as well as in consequence of its refusal of a writ of error (107 Tex. at page 240, 176 S. W. 722, L. R. A. 1917F, 996) in Southern Oil Co. v. Colquitt, 28 Tex. Civ. App. 292, 69 S. W. 169. We are unable to distinguish those cases upon the controlling facts from the one here presented. Because of them, and of their being either a later holding or of superior authority, no attempt is here made to iron out any inconsistencies, if such there be, between their clear declaration on the question of legal 'title and the previous decision of the same court in the Teel Case, 95 Tex. 586, 68 S. W. 979, its refusal of a writ of error in the Witherspoon-Staley Case, 156 S. W. 557 (107 Tex. 241, 176 S. W. 722, L. R. A. 1917F, 989), or in the holdings of the Courts of Civil Appeals in the Fisher, Woodrum, and Bailey-Williams Cases, reported respectively in 178 S. W. 905, 188 S. W. 246, and 223 S. W. 312.
The appellees undertake to differentiate the Daugherty Case from the one at bar on the asserted ground that a “present consideration was paid sufficient to vest the title to the minerals in place without making it necessary to develop for royalty,” but in our opinion the distinction is artificial rather than real, since a reference to the recitals in that case shows the indepénd-ent consideration to have been only $100. The acreage conveyed is not given, nor are the values involved otherwise stated, so it does not appear that, relatively, the $100 there paid was any less nominal than the $1
likewise appearing here. Moreover, in the Colquitt Case the amount so acknowledged was also $1, and yet the Supreme Court, in relying upon and giving the sole reason for a refusal of a writ of error in it in the Daugherty Case, said:
“This court refused the writ of error. It could have done so only under the view that the interest created by the instrument was an interest in the realty itself, requiring for its validity the joinder of the wife because of the homestead character of the realty.” 107 Tex. 240, 176 S. W. 722, L. R. A. 1917E, 989.
Furthermore, there was no circumstance tending to weaken the effect of the acknowledgment of the $1 here. Like any other receipt, it was presumably paid (Lanier v. Foust, 81 Tex. 187, 16 S. W. 994), and no reason is perceived why it did not serve the purpose of a valid independent consideration (Hitson v. Gilman, 220 S. W. 140, 143; McKay v. Tally, 220 S. W. 167, 169; McKay v. Lucas, and Same v. Kilcrease, 220 S. W. 172, and 177, respectively; Tucker v. Glew, 158 Iowa, 231, 139 N. W. 565).
The conclusion is therefore reiterated that in the Daugherty, Colquitt, and present cases not only was there a not materially different receipt of a money consideration in each acknowledged, but that the other considerations of contingent royalties and operative expenditures were the same, as were in substance also all other provisions of the contracts bearing on the interests severally created by them. It is deemed unnecessary to parallel or repeat here these substantially common recitations running through the three grants. The instruments speak for themselves, and, that fact appearing, it must follow that, if an interest in the fee vested under either of the former, it did under the latter also, since it is inconceivable that the courts will construe the same'provisions in identical surroundings one way in one case and differently in another.
In one important feature, however, the grant before us differed from that found in the Daugherty, Colquitt, or any other decided case to which our attention has been directed, in that, after reciting that a forfeiture may be prevented by the payment of $10 per year “until such well is commenced or until shipments from such mine have begun,” it contained this significant provision:
“And it is agreed that the completion of a well shall operate as a full liquidation of all rental under this provision during the remainder of the term of this lease.”
[8,9]
This, we think, like all the other drilling terms, was plainly a condition subsequent, and that, when they are all taken and considered together, the expression of them is thus made so explicit as to clearly preclude the arising of any other by implication, except, perhaps, an obligation to protect the land from drainage from its sides and to further reasonably develop it, after it has first been proven to be oil-bearing territory. Additional terms may be read into the written contracts of parties only when they are silent' about, and not inconsistent with, what is sought to be so interpolated, and not where, as in this instance, the express stipulations negative and repel them. Thomason v. Upshur Co., 211 S. W. 328; Grimes v. Goodman Drilling Co., 216 S. W. 203; Thornton on Oil and Gas, § 81, p. 129, and (3d Ed.) vol. 1, § 98, p. 157; Carper v. Gas Co., 78 W. Va. 433, 89 S. E. 12, L. R. A. 1917A, 171.
[10]
The undisputed evidence already cited showing the completion of a well within the meaning of this provision, the rentals for the full period of 25 years "were thereby regarded as satisfied, and the grant kept in force for that time, subject only, it is thought, if indeed to that, to the suggested contingent duty of reasonable protective and oontinued development, should it be shown in the meantime to be oil land. It becomes unnecessary to determine whether this last-mentioned implication would arise- here, however, and that question is not decided, because, under the fact findings above made, at the time such contingency actually arose as to this land — that is, the discovery of oil in December, 1918, by the Humble Oil Company upon a contiguous tract — one of the appellees was in possession of and drilling on this land to the exclusion of appellants, which situation was preventive of a compliance by the latter.
[11,12]
Assuming, though merely for the sake of argument, that obligation to continue drilling or to meet contiguous development could have arisen under Underwood’s conveyance, under the express holding of the Supreme Court in Grubb v. McAfee, 109 Tex. 527, 212 S. W. 464, at most it only amounted to a covenant, not a forfeiture ipso facto, on the part of the lessee, the violation of which would have merely given the lessors ground in a proper action for that purpose, after due notice, demand, etc., to either recover damages for the breach or obtain a decree of rescission and cancellation of the contract.
No such case as for a violated covenant was ever attempted by the appellees, nor, under the facts appearing, could it have beep sustained if it had been.
[13]
Neither was there a loss or forfeiture by appellants of their vested interest in this property through abandonment, because that result, in the absence of some act or deed legally sufficient to divest the title, is inapplicable to a legal title .to land. Barringer and Adams on the Law of Mines and Mining, p. 36; Dikes v. Miller, 24 Tex. 417; 2 Washburn on Real Property, § 1888 (6th Ed.);
Tiedeman on Real Property (enlarged edition)
%
T39, p. 603; 1 Corpus Juris, pp. 9, 10; Barrett v. Coal Co., 70 Kan. 649, 79 Pac. 150; Mayor v. Riddle, 25 Pa. 259; Coal Co. v. Wiggin, 68 Fed. 446, 15 C. C. A. 510.
[14]
But, if that view were erroneous, and the estate created hy this instrument were held to he of such a nature as might be so forfeited, still the judgment here could not stand, because the court below was without power to say, in the face of the very strong testimony introduced to the contrary, that abandonment had occurred; the question being plainly one for the jury.
After what has been said it seems hardly necessary to again recur to the claims of appellees that they were innocent purchasers, and that appellants were estopped to set up their rights under Underwood. Neither defense was made out. The plea of innocent purchaser was necessarily based alone upon the Eilers release, which we have held invalid, and therefore an insufficient support.
[15]
As to the other one, our conclusions of both fact and law upon it may not he better stated than in this excerpt from the very able brief filed in this cause on behalf of appellants:
“The plea of estoppel cannot avail; for that, mindful that the plea cannot be based for land upon mere silence or inaction, or nonclaim or failure to pay taxes, or neglect, or want of use or possession, but only upon affirmative words or acts amounting to actual or constructive fraud, it is plain there was no estoppel in this ease, as a matter of law upon the undisputed evidence; (1) Because it does not appear that anything was said or done by appellants, or any predecessor in title under the conveyance to Underwood, amounting to a disclaimer or denial of the title they now set up, misleading or otherwise; (2) because it does not appear that anything, if so said or done, was intended or would reasonably have been expected to be acted upon by the appellants, or any predecessor in title to them, in buying or developing the land in controversy; (3) because the ap-pellees, and those with whom they are in privity, appear to have known from the records, and indeed did actually know, the facts of the appellants’ title as well as the appellants or their predecessors in title, and to have made of them no inquiry whatever in that regard; (4) because it does not appear that the ap-pellees, or any one with whom they are in privity, bought or developed the land in reliance on hnything said or done by appellants or any predecessor in title, or upon which they had the right to rely, but on their own independent judgment, indulging simply in a mistaken legal deduction; and (5) in the development more than enough money has been admittedly received than is necessary to fully reimburse all outlay, and which will be allowed in the accounting; hence the essential to estoppel of pecuniary prejudice is wanting.”
The facts thus catalogued are fully sustained by the record. The legal conclusions, we think, find support in the following authorities: Williams v. Conger, 49 Tex. 582; Murphy v. Welder, 58 Tex. 236; Mast v. Tibbles, 60 Tex. 301; Moss v. Berry, 53 Tex. 632; Page v. Arnim, 29 Tex. 54, 71-73; Smith v. Roberts, 218 S. W. 29, citing Burleson v. Burleson, 28 Tex. 383; Pierce v. Texas Rice Dev. Co.,
52
Tex. Civ. App. 205, 114 S. W. 860, 861; Hume v. Carpenter, 188 S. W. 707; Scoby v. Sweatt, 28 Tex. 730, 731; Supply Co. v. Mining Co., 203 S. W. 70; Marble Co. v. Hollinger (Com. App.) 212 S. W. 153.
From the conclusions stated it follows that appellants were entitled to a judgment for the interest in the land as sued for by them, and it being made to appear here that the issues of accounting and damages were, by agreement in the court below between all the parties, postponed until the determination of the main issues herein disposed of, the judgment has been reversed, and the cause remanded to the trial court, with instructions to so enter judgment in favor of appellants and then to proceed to trial of the postponed issues, pursuant to the agreement between the litigants in the record.
Reversed and remanded, with instructions.
PLEASANTS, C. J., disqualified and not sitting. or