Walker, J.
The subject matter of suit is the undivided half of fifteen hundred acres of land, situated in Harris county.
On the twenty-eighth of October, 1868, W. H. Howard, Mary L. Howard and Jenny M. Buckley filed their petition against James K. Holland, Annie J. Holland and others. W. B. Walker, as the executor of the will of King Holstein, deceased, was made a defendant by amended petition.
In the progress of suit, the plaintiffs have, dismissed as to all defendants except Walker and the Hollands.
It appears that the Hollands -were in possession of the land at the commencement of .suit, claiming title to thirteen hundred acres of the land in controversy under a purchase from Walker, the executor of Holstein’s will. It seems, however, that they never obtained a deed from him.
The action would appear, without close inspection of the pleadings, to be merely the action of trespass to try title, with a claim for damages; but there was, in the original petition, a prayer for partition j and the amended petition, under which Walker was [507]*507made a defendant, was a petition for partition as against him, the plaintiffs claiming one half interest in the land, as the devisees' of Mrs- L. J. Buckley, mother of the female plaintiffs and first wife of 0. W. Buckley, their father.
The plaintiffs recovered in the district court, from which judgment an appeal is brought to this court by Walker, the executor of Holstein’s will.
¡Numerous errors are assigned to the rulings and judgment of the district court.
First—The court erred in permitting plaintiffs to introduce in evidence upon the trial, a copy of the 'deed from- Allen Vince, purporting to act as administrator of Bichard Vince, to 0. W. Buckley, dated fourth of August, 1846.
It is insisted that it was necessary for the plaintiffs-' to show that administration had been had upon the estate of Richard Vince, deceased; that there had been an order of the county court to sell the land belonging to his estate; that there had been a sale, which sale was afterwards confirmed by the court.
It is- further insisted that the law in force at the time of such sale, if any was made, required that the land belonging to the estates of deceased persons, when sold, should tie sold on credit of twelve months; whereas the deed showed a sale-for cash.
Had’ this been merely an action of trespass to.try title-, wherein the plaintiffs must have deraigned title from the government, and. recovered, if at all, upen the validity .of that title, then this objection. would probably have been fatal to the plaintiffs? claim for the land.
But this must be regarded as something more- than the- action of trespass to- try title; and so far as the defendant Walker is concerned, though he claims title to thirteen hundred acres of the land, it must he regarded as a proceeding in partition.
The deed from Vince to Buckley is dated August 4, 1840, during the lifetime of L, J. Buekley, (¡L W. Buckley’s first wife,[508]*508Who died on the sixteenth day of September, 1851. The deed from C. W. Buckley to King Holstein is dated March 8, 1860.
The action of trespass to try title may be maintained in the courts- of this State upon a merely equitable title. (See Miller v. Alexander, 8 Texas, 36.) And if the form of action in this case was originally mistaken, or wrong parties made, it was competent for the plaintiffs to amend, both as to the form of their action, and by dismissing as to wrong parties and bringing in the real parties in interest. (See Henderson v. Hissam, 8 Texas, 46, and Smith v. McGaughey, 13 Texas, 464.)
“ Under our system of procedure a petition may he changed by amendment so as to make the case a perfectly new one, on payment of the costs wdiich would have been adjudged against the plaintiff, had he dismissed his original petition and filed a new one; provided, that in the mean time the statute of limitations had not run, or that some other defense, valid in law, has not accrued to the defendant, and which could have been set up had the original action been discontinued and a new one commenced; and provided, that the defendant has not been improperly brought into court in the first instance, as, for example, when he was sued in a county other than that in which he had his domicile, under color of being joined with a ficticious co-defendant, purporting to reside in such county.
“Although a plaintiff cannot maintain a suit commenced without any cause of action, by introducing a cause of action which has subsequently arisen, without, at least, paying the costs apd giving the defendant every defense he could have urged had a distinct suit been instituted upon the new cause of action; yet we see no objection to joining new causes of action, which have accrued since the commencement of the "suit, for the purpose of avoiding multiplicity of suits.”
We would add to this, that the plaintiff must not be allowed to ■ introduce a new cause of action inconsistent with, or antagonistic to, the cause first counted on. The court should not tolerate re[509]*509pugnance in pleadings. We think that wherever a substantial change is made in the form and nature of the action by the plaintiff, or the defendant introduces entirely new matter of defense, having once pleaded to the merits, so as to delay the cause, the district court should insist on the payment of all costs made in the case up to the time of filing the amended pleading. The rule which puts a party thus pleading upon “ terms” is too familar to the courts of the country, though not heretofore rigidly insisted on in this State, to require argument or authority to establish its soundness in law and reason.
But this by no means disposes of the very complicated case before us. It is shown by the record that Mrs. L. J. Buckley died testate, having appointed an executor by her will, and devising a large amount of community property to her children, then minors, for whom it appears the father, C. W. Buckley, acted as guardian. It was undoubtedly his duty to protect the interests of his children and wards. It was also the duty of the executor of Mrs. Buckley’s will to settle her estate and execute the trusts created under the will in good faith, and within a reasonable time, so far as the trusts were limited in their duration.
We come now to regard the parties as claiming under a common title, 'each presenting their rights at law'and in equity.
Eight or nine years had elapsed between the death of Mrs. Buckley and the date of the deed from C. W. Buckley to King Holstein. Whether 0. W. Buckley acted in good faith, in selling the land to Holstein, or not, the exhibits and evidence in the case all' show that Holstein was a bona fide purchaser for a valuable consideration; all of which has been paid, a portion of it even since the death of C. W. Buckley.
It is claimed that 0. W. Buckley had a right to sell'the land in controversy, for the payment of community debts, and that there were such debts existing at the time of the sale, and that at least one large debt still exists; and it is insisted as error that the dis[510]*510trict court refused to admit evidence to the jury, showing the existence of this debt. We think the evidence would have been proper, had it been shown that Buckley sold the property to pay debts, and that the money was actually applied in that way.
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Walker, J.
The subject matter of suit is the undivided half of fifteen hundred acres of land, situated in Harris county.
On the twenty-eighth of October, 1868, W. H. Howard, Mary L. Howard and Jenny M. Buckley filed their petition against James K. Holland, Annie J. Holland and others. W. B. Walker, as the executor of the will of King Holstein, deceased, was made a defendant by amended petition.
In the progress of suit, the plaintiffs have, dismissed as to all defendants except Walker and the Hollands.
It appears that the Hollands -were in possession of the land at the commencement of .suit, claiming title to thirteen hundred acres of the land in controversy under a purchase from Walker, the executor of Holstein’s will. It seems, however, that they never obtained a deed from him.
The action would appear, without close inspection of the pleadings, to be merely the action of trespass to try title, with a claim for damages; but there was, in the original petition, a prayer for partition j and the amended petition, under which Walker was [507]*507made a defendant, was a petition for partition as against him, the plaintiffs claiming one half interest in the land, as the devisees' of Mrs- L. J. Buckley, mother of the female plaintiffs and first wife of 0. W. Buckley, their father.
The plaintiffs recovered in the district court, from which judgment an appeal is brought to this court by Walker, the executor of Holstein’s will.
¡Numerous errors are assigned to the rulings and judgment of the district court.
First—The court erred in permitting plaintiffs to introduce in evidence upon the trial, a copy of the 'deed from- Allen Vince, purporting to act as administrator of Bichard Vince, to 0. W. Buckley, dated fourth of August, 1846.
It is insisted that it was necessary for the plaintiffs-' to show that administration had been had upon the estate of Richard Vince, deceased; that there had been an order of the county court to sell the land belonging to his estate; that there had been a sale, which sale was afterwards confirmed by the court.
It is- further insisted that the law in force at the time of such sale, if any was made, required that the land belonging to the estates of deceased persons, when sold, should tie sold on credit of twelve months; whereas the deed showed a sale-for cash.
Had’ this been merely an action of trespass to.try title-, wherein the plaintiffs must have deraigned title from the government, and. recovered, if at all, upen the validity .of that title, then this objection. would probably have been fatal to the plaintiffs? claim for the land.
But this must be regarded as something more- than the- action of trespass to- try title; and so far as the defendant Walker is concerned, though he claims title to thirteen hundred acres of the land, it must he regarded as a proceeding in partition.
The deed from Vince to Buckley is dated August 4, 1840, during the lifetime of L, J. Buekley, (¡L W. Buckley’s first wife,[508]*508Who died on the sixteenth day of September, 1851. The deed from C. W. Buckley to King Holstein is dated March 8, 1860.
The action of trespass to try title may be maintained in the courts- of this State upon a merely equitable title. (See Miller v. Alexander, 8 Texas, 36.) And if the form of action in this case was originally mistaken, or wrong parties made, it was competent for the plaintiffs to amend, both as to the form of their action, and by dismissing as to wrong parties and bringing in the real parties in interest. (See Henderson v. Hissam, 8 Texas, 46, and Smith v. McGaughey, 13 Texas, 464.)
“ Under our system of procedure a petition may he changed by amendment so as to make the case a perfectly new one, on payment of the costs wdiich would have been adjudged against the plaintiff, had he dismissed his original petition and filed a new one; provided, that in the mean time the statute of limitations had not run, or that some other defense, valid in law, has not accrued to the defendant, and which could have been set up had the original action been discontinued and a new one commenced; and provided, that the defendant has not been improperly brought into court in the first instance, as, for example, when he was sued in a county other than that in which he had his domicile, under color of being joined with a ficticious co-defendant, purporting to reside in such county.
“Although a plaintiff cannot maintain a suit commenced without any cause of action, by introducing a cause of action which has subsequently arisen, without, at least, paying the costs apd giving the defendant every defense he could have urged had a distinct suit been instituted upon the new cause of action; yet we see no objection to joining new causes of action, which have accrued since the commencement of the "suit, for the purpose of avoiding multiplicity of suits.”
We would add to this, that the plaintiff must not be allowed to ■ introduce a new cause of action inconsistent with, or antagonistic to, the cause first counted on. The court should not tolerate re[509]*509pugnance in pleadings. We think that wherever a substantial change is made in the form and nature of the action by the plaintiff, or the defendant introduces entirely new matter of defense, having once pleaded to the merits, so as to delay the cause, the district court should insist on the payment of all costs made in the case up to the time of filing the amended pleading. The rule which puts a party thus pleading upon “ terms” is too familar to the courts of the country, though not heretofore rigidly insisted on in this State, to require argument or authority to establish its soundness in law and reason.
But this by no means disposes of the very complicated case before us. It is shown by the record that Mrs. L. J. Buckley died testate, having appointed an executor by her will, and devising a large amount of community property to her children, then minors, for whom it appears the father, C. W. Buckley, acted as guardian. It was undoubtedly his duty to protect the interests of his children and wards. It was also the duty of the executor of Mrs. Buckley’s will to settle her estate and execute the trusts created under the will in good faith, and within a reasonable time, so far as the trusts were limited in their duration.
We come now to regard the parties as claiming under a common title, 'each presenting their rights at law'and in equity.
Eight or nine years had elapsed between the death of Mrs. Buckley and the date of the deed from C. W. Buckley to King Holstein. Whether 0. W. Buckley acted in good faith, in selling the land to Holstein, or not, the exhibits and evidence in the case all' show that Holstein was a bona fide purchaser for a valuable consideration; all of which has been paid, a portion of it even since the death of C. W. Buckley.
It is claimed that 0. W. Buckley had a right to sell'the land in controversy, for the payment of community debts, and that there were such debts existing at the time of the sale, and that at least one large debt still exists; and it is insisted as error that the dis[510]*510trict court refused to admit evidence to the jury, showing the existence of this debt. We think the evidence would have been proper, had it been shown that Buckley sold the property to pay debts, and that the money was actually applied in that way. It is difficult for us to determine, from the existing law, what were the relative rights of the, executor of Mrs. Buckley’s will, and the surviving connubial partner. It is urged by the appellee that the will of Mrs. Buckley took away from her surviving husband the right to control and sell the connubial property.
We cannot concur in this opinion. Mrs. Buckley, by her testament, could not set aside the legal rights of her surviving husband, and, in respect to her memory, we declare that we have found nothing in this case which compels the conclusion that she ever intended so to do.
. While it is the policy of the law to guard with jealous watchfulness the interest of minor children, it is, nevertheless-, held to be good in morals and good in law, as a rule, that such children should not be allowed to impugn the motives or degrade the memories of their deceased parents, by charging them, in the courts of the country, with fraud and corruption, unless such charges are clearly made out by evidence.
It is easy to gather from the record that these appellees have received a very considerable amount of property from both father and mother.
We have said that it was our intention to regard this as a proceeding in equity for partition; the appellees have strongly insisted on this theory of the case. We have also intimated that it was not incumbent on the plaintiffs to go beyond the common source in their deraignment of title. (See Paschal v. Acklin, 27 Texas, 192; also Burleson v. Burleson, 28 Texas, 383.) The appellants were estopped in pais from denying the title under which, they themselves claim. They might have set up an outstanding titlej and shown that they-were claiming under it; but [511]*511in a proceeding like thi$ we must look more to the equities of the parties.
In Good v. Coombs, 28 Texas, 385, it is held that “ There is no rule of law known to this court, by which the survivor of the conjugal partnership is prohibited from alienating his or her portion of the community estate, provided the alienation is in good faith, and not with intent to defraud creditors or the heirs of the the deceased partner.
“ The right of the survivor of the conjugal partnership, to make sales of community property, would seem to be a necessary consequence of the obligation of such survivor to discharge the debts against the partnership, because it is usually by such means only that those debts can be paid.”
But we think the authorities cited by the appellant are not satisfactory of the conclusion that in cases of administration on an estate of a deceased connubial partner, the power of the survivor over that portion of the estate which descends to the children of the deceased does not cease.
The case of Wall v. Clark, 19 Texas, 324, is a case where there were no children born of the marriage. We think the case of Sossaman v. Powell, 21 Texas, 666 and 667, draws a clear distinction between cases where there has been and where there has not been administration.
Chief Justice Hemphill says: “We are of opinion that the suit was properly brought by the wife and minor children, to remove the cloud from their title. But if this were doubtful under the law as it formerly existed,, that doubt has been removed by the act of twenty-sixth of August, 1856, supplementary to the act of March 13, 1848, ‘defining the marital rights of parties.’ The act declares in effect that it shall not be necessary for the surviving husband or- wife to administer upon the community property, but he or she shall have the exclusive management, control and disposition of the same, after the death of the other [512]*512partner in matrimony, etc.; and that he or she may sue or be sued with respect to the same.
“The husband departed this life nearly two months before the passage of this law, but there is not much probability of administration having been taken out, prior to the passage of the act, and if so, there would have been no necessity for administration; for by fair construction the act applies to community estates not administered upon at the time of the passage of the act, as well as those arising afterwards by the death of the husband or wife, subsequent to its passage.”
How, there is some question as to whether the community estate of Buckley and wife had been administered at the passage of this act, and how far the act affected the right of Buckley to sell and dispose of any community property which remained after administration had been completed.
The third section of said act requires the husband, in the event his wife had a surviving child or children, to file an inventory of the community property. The fifth section empowers the county court to require i bond from the husband, or to “ appoint administration over the estate, as in other cases,” upon the heirs of the wife showing that the “ husband is wasting or mismanaging, or is about to waste or mismanage such community property, or is about to remove it out of the State, or otherwise dispose of it, in such- manner as to injure or defraud the right -of such heirs.”
In Burleson v. Burleson the court say, in speaking of the rights of heirs to recover community property: “ If they desire to enforce them at this late day, they must be prepared to show and do equity themselves.
“Their rights of inheritance in the community property of their father and deceased mother were not unqualified and absolute, but only attached upon the residue that might be left in the hands of their father after the extinguishment of the community debts, if there were any.”
[513]*513It is not made clear to the mind of the court that there were not community debts unpaid, even at the date of the sale from Buckley to Holstein; but about nine years had elapsed between the death of Mrs. Buckley and the date of the deed to Holstein, and it is fair to presume, there having been administration on the estate of Mrs. Buckley, that the debts had been paid, or were at least barred by the statute of limitations.
But the surviving' husband had a right to sell the community property to reimburse himself for community debts paid by him out of his own funds. Such, however, would have been a debt against the ganancial estate, and. should, perhaps, have been presented to the executor of Mrs. Buckley’s will for payment.
We do not feel bound to presume anything in favor of the claim of the appellees, but rather hold with the court in B.urleson v. Burleson, that they mu:t account for what they have received of the community property; they must show clearly that out of the large amount of the community property owned by their father and mother at the decease of the latter, they have not received their full share, after deducting the amount of the debts against the property outstanding at the time .of their mother’s death; and if it shall appear that they have received such an amount, then they will not be allowed to disturb the title of a bona fide purchaser, from their father, of any portion of the community estate which might have remained in his hands after the payment of debts, and the satisfaction of their own rights. We are not sure that the act of August 26,1856, could have affected the parties in this case; but if administration were not complete upon the estate of Mrs. Buckley, at the date of its passage, then it did aííécfc the community estate, and gave Buckley an almost unqualified power to control, to sell and dispose of the estate.
Article fifteen of the will of Mrs. L. J. Buckley reads as follows: “ Upon the return of the partition by my said executor, he shall be considered as discharged from further duties and all liability, without the formal' discharge by the court.”
[514]*514This act then terminated the-administration upon Mrs. Buckley’s estate. By the provisions of that will the management of the property was taken away from the county court. The eighth article of the- will reads as- follows: It is my will and desire, that when ztiy children, respectively, shall arrive to the age of maturity, or shall marry, the- county court may appoint a commissioner to divide said property into- so many parts, equal in value, as there shall he of my said children living, which said parts may he designated by numerals written upon ballots, and said child's© arriving at age, or marriage, shall draw out one of said ballots;, and" the part so designated by said ballot shall pass to. and vest iti said child, to- his or her own proper use- forever; the remainder of said property to. he kept together and managed by my said husband as aforesaid. A second division may be had in- like manner; upon the happening of a second contingency as aforesaid, and the-return of the commissioner into the county court shall be admitted of record, and shall be a complete release to- my said husband of all responsibility on account of said property so- distributed; and when the last of my said children shall arrive to the age of majority, or shall-marry, then my said husband shall deliver to said child the remainder of said property, and the same shall vest in said child in like manner as above set forth; and the receipt óf said child to my said husband shall- be a complete- exoneration of him from all liabilities on account of all said property, which receipt may be filed and admitted of record in said court, and shall have the like force and effect as the record of said return of said commissioner.”
Under this clause of the will, the legal title to the land in controversy could not have vested in the children of Mrs» Buckley before the happening <~f the events therein contemplated. If, then, the legal title was conveyed by Vince’s administrator to 0. W. Buckley, it must have remained in him, subject only to an equitable-estate in the appellees t© the one half of the land in right [515]*515of their mother, or under the devises of her will. For the purposes of this ease we must hold that the legal title to the land was in C. W. Buckley on the eighth of March, 1860. The deed from Vince 'must have conveyed this idea, and now it hut remains to determine how far a bona fide purchaser, not chargeable with notice of the equity in the children .of Mrs. Buckley, could be affected by .this outstanding equity.
The heirs of Mrs. Buckley could have prevented the sale, or they could have required a bond of indemnity. (See articles 4648, 4649 and 4650, Paschal’s Digest.) This they had totally neglected.
But whilst we must regard the law and the facts in the light in which we have stated them, it is our most earnest wish to arrive at such a disposition of this case as shall stand upon the fairest .grounds of equity. We cannot ignore the conviction that, notwithstanding their want of diligence in protecting themselves against the acts of their father, by the remedies which the statute placed in their hands, they certainly had an equitable interest in the land, in right of their deceased mother, fc-ome of them were infants and females, and it was only natural that they should confide, in the fullest sense, in the justice and integrity of their father; and we cannot, under all the circumstances, declare that these children shall be deprived of their entire interest in .this land. Yet they must regard the equitable rights of those who are interested in the estate of King Holstein, -deceased; and we hold it to be equity that before .the appellees shall have partition of the lands in controversy, they shall repay to the executor of Holstein’s will the equal one-ha-lf of the purchase money paid by Holstein to 0. W. Buckley, together with interest at the rate of eight per cent, .per annum; or, in case the appellees prefer it, they may have partition of the land on payment to the executor of Holstein’s will of an amount equal to the fair valuation of all the improvements made upon the land since the sale by Buckley to Hoi[516]*516stein, and' the estate of Holstein must be charged with the sum of sixteen hundred dollars, money received- from Holland and wife.
It is due to- counsel, who represent both the appellant and appellees, that we should say it is rarely our good fortune to meet with a case so. thoroughly argued and briefed, but the argument is eminently controversial—the one side is very good until the other is told. The judgment of the district court is reversed and the» cause remanded, to. be proceeded in in accordance with this opinion.
Reversed and remanded.