Gould, Associate Justice.
Colonel James Bowie, in 1831, received a grant of a league of land as a married man, and a colonist of Austin’s colony. His wife Ursula died in 1833, leaving no children. On January 14,1867, the surviving brother and sisters of Mrs. Bowie, claiming to be her heirs, filed their petition of trespass to try title to the undivided half of the league in the District Court of Colorado county, making W. J. Hutchins, John D. Andrews, and four others defendants. It seems, however, that the citations for defendants were first placed in the sheriff’s hands in May, 1871; at which time service was had on all of the defendants except one. In August of that year an amended petition was filed, making more than forty defendants, in addition to those first sued. On February 11, 1873, another amended petition was filed, alleging, that, at Mrs. Bowie’s death, her grandmother, Josefa Ruez y Navarro, was her heir; that this grandmother (who, it afterwards appears, died in 1836 or 1837) left four sons and one daughter, all dead, hut most of them leaving descendants, who are attempted to be named, and who are n de co-plaintiffs.
[548]*548The answers of defendants show that a number of them, occupying portions of 200 acres in the northwest corner of the league, claimed that this 200 acres was sold by Colonel Bowie during his wife’s lifetime. All of the other defendants claim under a title bond, alleged to have been made by Bowie to one William Richardson, as follows:
“Department of Brazos,
“ Jurisdiction of Austin.
“ Know all men by these presents, that I, James Bowie, resident citizen of the jurisdiction aforesaid, am held and bound, and by these presents do bind myself, my heirs, executors, administrators, and assigns, in the penal sum of twenty thousand .dollars, to William Richardson.”
Now, the condition of the above obligation is such, that whereas the above-bounden has sold one league of land to said William Richardson, conceded by the Mexican Government, under Stephen R. Austin’s contract of colonization, situated on the Navidad creek, or river, adjoining Thompson’s and others, with a reservation in favor of Thompson of 200 acres, including the spring of water where said Thompson now resides, for five thousand dollars to me in hand paid by said Richardson; and whereas “ it is at present impracticable to execute a warranty title for the same to said William Richardson, in consequence of war, and the absence of a recording officer, now, should the above-bounden execute, or cause to be executed, a full and complete title to the above league of land, then this obligation to be of no effect; otherwise, to remain in full force and virtue. This 15th day of October, 1835.
“James Bowie.
“Witnesses: R. M. Williamson.
J. G. W. Pierson.”
This bond was first recorded, or rather a copy thereof was recorded, in Colorado county in 1839, on proof of the handwriting of R. M. Williamson, one of the witnesses. In November, 1840, however, the execution of the bond was proven [549]*549up by Williamson, and it was thereupon again recorded in Colorado county.
Colonel Bowie lost Ms life at the fall of the Alamo, on March 6, 1836. In June, 1840, Richardson made Ms title bond to Kidder Walker for the land sold to him by Bowie, reciting a consideration of §1,500, §500 of which was acknowledged as received. Subsequently, however, to wit, on January 7, 1843, Walker accepted a deed for 1,600 acres, lying adjacent to the 200 acres reserved in Bowie’s bond, and with that 200 acres forming a tract of 1,800 acres, in full satisfaction of his claim under the bond of Richardson, and released the balance to Richardson. Some of the defendants claim under Walker, and there is evidence of continuous occupancy of this part of the league by Walker and his vendees, from 1840 down. In 1843, Richardson conveyed to Hutchins the undivided third of the 2,628 acres of the league remaining unsold, and afterwards, in the same year, conveyed the other undivided two-thirds to defendant Andrews, under whom the other defendants not heretofore alluded to claim.
The pleadings of the numerous defendants need not be detailed. They embody, at least some of them, the defense of the great delay and laches of plaintiffs in suing; the defense of limitation of three, five, and ten years; and the further defense, that the sale by Bowie was made to pay community debts; and embodied, also, a suggestion of improvements in good faith.
The evidence showed that the improvements on the league were numerous and valuable; that the 200-acre reservation was occupied by Thompson up to 1836. But whilst there was evidence which might have supported a verdict, as to some of the defendants, under the limitations of five and ten years, it was questionable whether Hutchins and Andrews, and some at least of those claiming under them, could be protected by any other limitation than that of three years; and it becomes an important question, whether any of the defendants, and especially those claiming under the title [550]*550bond of Bowie, had shown such title, or color of title, as to he within the statute.
The plaintiffs asked the court to charge, that three years’ adverse possession could not avail the defendants. This was refused; and the jury were instructed, that if they “believe, from the evidence, that the defendants, or any of them, have had possession of their several portions of the land in controversy for three years before suit is brought, and have held possession under title, or color of title,—that is, by hr regular chain, of transfer from and under the sovereignty of the soil, or a transfer to the persons in possession by deeds of conveyance deducible from the sovereignty of the soil, not registered, or not duly registered, or such transfers were only in writing, provided there he intrinsic fairness and honesty in such transfers,—such of said defendants who have so been in possession for three years are protected by law, and cannot be ejected, even by those who have a better and paramount • title.”
There was a verdict arid judgment for the defendants; and the first question which it is proposed to consider, is whether there was error in this charge and the refusal of the charge asked.
The league being community property, on the death of Mrs. Borne her community half thereof, by operation of law, vested in her heirs, subject to administration, and to the right of her surviving husband to wind up the community affairs. It is believed to be a doctrine thoroughly incorporated into our legal system, that the interest of the husband and wife in community property is equal, and that it is immaterial i whether the grant or deed thereto be in the name of the husband or wife separately, or to them jointly. (Scott v. Maynard, Dallam, 548; Love v. Robertson, 7 Tex., 9; Edwards v. James, 7 Tex., 382; Huston v. Curl, 8 Tex., 240; Wright v. Hays, 10 Tex., 130; Parker v. Chance, 11 Tex., 517; Thomas v. Chance, 11 Tex., 637; Chapman v. Allen, 15 Tex., 283; Allen v. Harper, 19 Tex., 502; Higgins v. Johnson, 20 Tex., [551]*551389; Mitchell v. Marr, 26 Tex., 331; Cooke v. Bremond, 27 Tex., 460; Zorn v. Tarver, 45 Tex., 520.)
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Gould, Associate Justice.
Colonel James Bowie, in 1831, received a grant of a league of land as a married man, and a colonist of Austin’s colony. His wife Ursula died in 1833, leaving no children. On January 14,1867, the surviving brother and sisters of Mrs. Bowie, claiming to be her heirs, filed their petition of trespass to try title to the undivided half of the league in the District Court of Colorado county, making W. J. Hutchins, John D. Andrews, and four others defendants. It seems, however, that the citations for defendants were first placed in the sheriff’s hands in May, 1871; at which time service was had on all of the defendants except one. In August of that year an amended petition was filed, making more than forty defendants, in addition to those first sued. On February 11, 1873, another amended petition was filed, alleging, that, at Mrs. Bowie’s death, her grandmother, Josefa Ruez y Navarro, was her heir; that this grandmother (who, it afterwards appears, died in 1836 or 1837) left four sons and one daughter, all dead, hut most of them leaving descendants, who are attempted to be named, and who are n de co-plaintiffs.
[548]*548The answers of defendants show that a number of them, occupying portions of 200 acres in the northwest corner of the league, claimed that this 200 acres was sold by Colonel Bowie during his wife’s lifetime. All of the other defendants claim under a title bond, alleged to have been made by Bowie to one William Richardson, as follows:
“Department of Brazos,
“ Jurisdiction of Austin.
“ Know all men by these presents, that I, James Bowie, resident citizen of the jurisdiction aforesaid, am held and bound, and by these presents do bind myself, my heirs, executors, administrators, and assigns, in the penal sum of twenty thousand .dollars, to William Richardson.”
Now, the condition of the above obligation is such, that whereas the above-bounden has sold one league of land to said William Richardson, conceded by the Mexican Government, under Stephen R. Austin’s contract of colonization, situated on the Navidad creek, or river, adjoining Thompson’s and others, with a reservation in favor of Thompson of 200 acres, including the spring of water where said Thompson now resides, for five thousand dollars to me in hand paid by said Richardson; and whereas “ it is at present impracticable to execute a warranty title for the same to said William Richardson, in consequence of war, and the absence of a recording officer, now, should the above-bounden execute, or cause to be executed, a full and complete title to the above league of land, then this obligation to be of no effect; otherwise, to remain in full force and virtue. This 15th day of October, 1835.
“James Bowie.
“Witnesses: R. M. Williamson.
J. G. W. Pierson.”
This bond was first recorded, or rather a copy thereof was recorded, in Colorado county in 1839, on proof of the handwriting of R. M. Williamson, one of the witnesses. In November, 1840, however, the execution of the bond was proven [549]*549up by Williamson, and it was thereupon again recorded in Colorado county.
Colonel Bowie lost Ms life at the fall of the Alamo, on March 6, 1836. In June, 1840, Richardson made Ms title bond to Kidder Walker for the land sold to him by Bowie, reciting a consideration of §1,500, §500 of which was acknowledged as received. Subsequently, however, to wit, on January 7, 1843, Walker accepted a deed for 1,600 acres, lying adjacent to the 200 acres reserved in Bowie’s bond, and with that 200 acres forming a tract of 1,800 acres, in full satisfaction of his claim under the bond of Richardson, and released the balance to Richardson. Some of the defendants claim under Walker, and there is evidence of continuous occupancy of this part of the league by Walker and his vendees, from 1840 down. In 1843, Richardson conveyed to Hutchins the undivided third of the 2,628 acres of the league remaining unsold, and afterwards, in the same year, conveyed the other undivided two-thirds to defendant Andrews, under whom the other defendants not heretofore alluded to claim.
The pleadings of the numerous defendants need not be detailed. They embody, at least some of them, the defense of the great delay and laches of plaintiffs in suing; the defense of limitation of three, five, and ten years; and the further defense, that the sale by Bowie was made to pay community debts; and embodied, also, a suggestion of improvements in good faith.
The evidence showed that the improvements on the league were numerous and valuable; that the 200-acre reservation was occupied by Thompson up to 1836. But whilst there was evidence which might have supported a verdict, as to some of the defendants, under the limitations of five and ten years, it was questionable whether Hutchins and Andrews, and some at least of those claiming under them, could be protected by any other limitation than that of three years; and it becomes an important question, whether any of the defendants, and especially those claiming under the title [550]*550bond of Bowie, had shown such title, or color of title, as to he within the statute.
The plaintiffs asked the court to charge, that three years’ adverse possession could not avail the defendants. This was refused; and the jury were instructed, that if they “believe, from the evidence, that the defendants, or any of them, have had possession of their several portions of the land in controversy for three years before suit is brought, and have held possession under title, or color of title,—that is, by hr regular chain, of transfer from and under the sovereignty of the soil, or a transfer to the persons in possession by deeds of conveyance deducible from the sovereignty of the soil, not registered, or not duly registered, or such transfers were only in writing, provided there he intrinsic fairness and honesty in such transfers,—such of said defendants who have so been in possession for three years are protected by law, and cannot be ejected, even by those who have a better and paramount • title.”
There was a verdict arid judgment for the defendants; and the first question which it is proposed to consider, is whether there was error in this charge and the refusal of the charge asked.
The league being community property, on the death of Mrs. Borne her community half thereof, by operation of law, vested in her heirs, subject to administration, and to the right of her surviving husband to wind up the community affairs. It is believed to be a doctrine thoroughly incorporated into our legal system, that the interest of the husband and wife in community property is equal, and that it is immaterial i whether the grant or deed thereto be in the name of the husband or wife separately, or to them jointly. (Scott v. Maynard, Dallam, 548; Love v. Robertson, 7 Tex., 9; Edwards v. James, 7 Tex., 382; Huston v. Curl, 8 Tex., 240; Wright v. Hays, 10 Tex., 130; Parker v. Chance, 11 Tex., 517; Thomas v. Chance, 11 Tex., 637; Chapman v. Allen, 15 Tex., 283; Allen v. Harper, 19 Tex., 502; Higgins v. Johnson, 20 Tex., [551]*551389; Mitchell v. Marr, 26 Tex., 331; Cooke v. Bremond, 27 Tex., 460; Zorn v. Tarver, 45 Tex., 520.)
It follows that the sale by Colonel Bowie to Richardson, whether by title bond or by deed, could not convey to Richardson title, or color of title, to his deceased wife’s community interest, unless, indeed, he was empowered to sell or convey by reason of community debts or obligations. (Thompson v. Cragg, 24 Tex., 596, 597.) Color of title, in the meaning of the statute, differs from title only in externals, and not in substance. Although the grant was in the name of Colonel Bowie, on the death of his wife no conveyance by him was essential to perfect the title of her heirs, and Ms unauthorized conveyance to others could not convey the title thus vested in those heirs. As to those defendants claiming under Richardson, there was the same hiatus in their claim of title as in the case of Thompson v. Cragg; and it was error in the court to charge as it did on that subject. Although the assignment of errors is very general, we are of opinion that this error in the charge is of such a character that it cannot be overlooked. There is nothing in any other portion of the charge to correct the error, and as it may have led to the verdict for the defendants, we. think that it must now lead to a reversal of the judgment.
It has been stated that one of the defenses was that the sale by Colonel Bowie was made to pay community debts. No direct evidence was offered in support of this defense, and it seems to have been assumed, on the trial, that there was, in fact, no evidence justifying a charge on the subject. Indeed, the court instructed the jury, that on Mrs. Bowie’s death one-half of the league was the property of her heirs at law, and was not subject to the disposition of the surviving husband; and as no further charge on that point was given, it is evident that the defense that Bowie sold to discharge community obligations, was not submitted to the jury. We are of opinion, however, that, in view of the great lapse of time after the sale by Colonel Bowie, being over thirty years. [552]*552before suit brought; that for over twenty-five years before suit parties had been in possession, claiming under this bond, which during all that time was of record; and that during all this lime there is no evidence of any claim by Mrs. Bowie’s heirs in opposition to the title bond, the jury might halve been instructed that they were at liberty to presume that the facts existed which authorized Colonel Bowie to convey. Says Justice Wheeler, in Watrous v. McGrew, 16 Tex., 513: “A power to execute a deed will-in many cases be presumed. (2 Cow. & Hill’s Notes to Phil. Ev., 812, 813.) In most cases where a deed would be evidence as an ancient deed without proof of its execution, the power under which it purports to have been executed will be presumed. (Id.; and see, also, 4 Pick., 162; 4 Greenl., 248; 1 Hill, 389; 9 Johns., 169.) In Louisiana, it has been held, that where possession had followed a sale made by an attorney in fact for a period of twenty or more years, the authority of the attorney might be presumed. (Buhols v. Bondousquie, 6 Martin N. S., 153.) So it has been held, that the acquiescence of the principal in the possession under the conveyance, for nearly twenty years, will authorize the presumption that a condition precedent, on which' the attorney was to convey land, had been fulfilled, and that he had not transcended his power. (McConnell v. Bowdry’s Heirs, 4 Monroe, 395. See, also, Dailey v. Starr, 26 Tex., 562; Johnson v. Shaw, 41 Tex., 428.) If the heirs of Mrs. Bowie knew that the land was held and claimed under this bond of Colonel Bowie’s, their failure to assert their rights for so long a period, during which it seems the land has been improved so largely, tends to raise a natural presumption that they knew “that no wrong had been committed.” (Meaner v. Hamilton, 1 Casey, 143; Foulk v. Brown, 2 Watts, 216.) After the lapse of near forty years, it is not to be expected that direct evidence could be produced of the existence of community debts. The principal ground1 on which deeds over thirty years old, which have been acted on, and which come from the proper custody under circum[553]*553stances free from suspicion, are admitted in evidence without proof of execution, is that the subscribing witnesses are presumed to be dead, and other proof beyond the reach of the party. (1 Greenl., sec. 570.) If a deed or a power of attorney may be presumed, why may not the facts which are equivalent to a power of attorney, and which, unlike a power of attorney, would not ordinarily be evidenced by writing, more readily be presumed ? (See Stockbridge v. Stockbridge, 14 Mass., 257; Jarboe v. Macatee, 7 B. Mon., 279; 2 "Wharton on Ev., sec. 1350.)
But whilst we think that the facts in evidence called for the submission to the jury of the question as to the existence of community obligations authorizing Colonel Bowie to sell, with appropriate instructions on the subject of presumptions, we do not design to express any further opinion on this branch of the case. Evidently, it is one which was not much considered on the trial; and it may be that on.another trial further light may be thrown on both the law and the facts.
A question has been discussed growing out of the fact that one of the defendants, Andrews, filed an affidavit that he could not procure the original title bond from Bowie to Richardson, and that it had been lost or mislaid, stating that he proposed to use in evidence a copy from the records.
The day before the trial, an amended petition was filed, stating that there were suspicious alterations and interlineartions in the record of the bond, and that Richardson had perpetrated a fraud in giving a false date to said instrument,- and in changing the terms and conditions of said bond, stating that they do not believe any bond was executed, and objecting to .the reading of the copy from the record. There was no affidavit to this amended petition, so as to put the plaintiff on proof of the bond.
The affidavit of Andrews was a sufficient compliance with the statute, at all events, to authorize the admission of the copy as evidence in his behalf.
The averments of the amended petition do not amount to [554]*554a charge of the forgery of the bond, and are too indefinite to present such an issue.
As to the alleged suspicious interlineations, &c., it does not appear that any existed in the record of the bond, made after proper authentication, and certainly the record does not present such evidence on the subject as enables us to see that any error was committed.
Another question is made over an agreement made in 1856 between Andrews and Hutchins on the one part, and one Townsend on the other, by which he agreed to place tenants on and hold possession of the land for them for five years. There is nothing to show that this agreement contemplated any concealment or fraud, or that the possession was to be taken in such a way as should not attract notice.
The titles of Hutchins and Andrews were on record, and gave notice of their claim; and they had a right to place tenants on the land, without placing on record the lease or agreement under which the tenants occupied.
With reference to the subject of limitations, our opinion is, that the .record does not show that such steps were taken as stopped the running of limitations, as between the original plaintiffs and defendants, until the issuance of process; and that certainly the additional defendants had the benefit of limitations up to the time when they were made parties.
We will dismiss other questions discussed with the remark, that whilst there is manifest error in the charge of the court confining the benefit of the three and five years’ limitations to one holding himself during the entire period, this error was in favor of appellants, and that the only material error entitling appellants to a reversal is the one first discussed.
For that error, the judgment is reversed and the cause remanded.
Reversed and remanded.