Acker, Presiding Judge.
B. H. Epperson and A. U. Wright owned the Talley league on which the Barrington plantation is situated, having-purchased it from the six heirs of Blackwell. For the purchase money they executed and delivered their six promissory notes each secured by lien retained against an undivided one-sixth of the land. In February, 1878, Epperson executed a mortgage to Sallie Dixon containing the following clauses: “Do hereby bargain, sell, and convey unto the said Sallie Dixon, her heirs and assigns forever, one league of land surveyed in the name of David Talley, situated in Brazoria County upon which is what is known as the Barrington plantation. * * * It is understood that my interest in said land is the undivided one-half thereof, and this instrument is intended only to cover that.'' This mortgage was. recorded in Brazoria County in September, 1878.
On July 31, 1878, Wright conveyed his half interest in the land to. Epperson, who assumed payment of all debts against the firm of Epperson & Wright. This deed was recorded in Brazoria County February 6, 1880. B. H. Epperson died leaving a will appointing J. P. Russell and R. B. Epperson general independent executors and E. S. Epperson special independent executor. The will was admitted to probate October 2, 1878, and the executors qualified.
On February 20, 1879, Epperson's executors executed to P. J. Willis & Bro. a deed of trust on the league of land to secure the payment of notes held by Willis & Bro. amounting to about $20,000. Lawson, the trustee named in this deed, sold the land under the deed of trust on the 4th day of May, 1880, to P. J. Willis & Bro., and they took possession immediately thereafter. P. J. Willis & Bro. conveyed the land to appellant, and he was in possession at the time the execution under which the appellee claims was levied on the land.
On May 20, 1880, the Dixon mortgage was foreclosed on an undivided one-half of the league by decree of the District Court of Marion County. On December 1, 1880, appellee recovered judgment in the District Court of Marion County against the executors of Epperson and against A. U. Wright as surviving partner for $1283.33. On May 24, 1881, the heirs of Blackwell obtained judgment against the executors of Epperson upon [571]*571the purchase money notes executed by Epperson and Wright and foreclosing the liens upon the undivided five-sixths of the land. This judgment recited that the notes given by Epperson and Wright for the other one-sixth had been paid off by Epperson and the vendor’s lien thereon discharged.
On June 21, 1881, execution was issued against the executors of Epperson on the judgment in favor of appellee, under which the entire league was sold in September, 1881, and bought in for appellee by his attorney, who afterwards, on May 5, 1883, conveyed the land by quit claim deed to appellee. On November 1, 1881, five-sixths undivided interest in the league was sold under an order of sale issued on the decree of foreclosure in favor of the Blackwell heirs. Appellant purchased at this sale.
In April, 1882, an undivided half interest in the league was sold under an order of sale issued on the decree of foreclosure in favor of Dixon, and appellant purchased at this sale.
On a former trial in the court below there was verdict and judgment for appellee for one-sixth of the land and for an annual rent of $833.33 from the date of his purchase. Willis appealed and the judgment was reversed and the cause remanded. 66 Texas, 43.
On the last trial there was verdict and judgment for appellee for an undivided one-twelfth of the land and $2000 as rent therefor, from which judgment this appeal is prosecuted.
It is contended that the court erred in refusing to give special charges: requested by appellant to the effect—•
“That the decree of foreclosure in favor of the Blackwell heirs recites that Epperson paid the one-sixth of the purchase money which freed the undivided one-sixth of the land from vendor’s lien, and the plaintiff can not recover the one-twelfth he claims unless he shows that Epperson paid the one-sixth before he bought from Wright, and having failed so to prove your verdict must be for the defendant.
“ That the recitation in the judgment of foreclosure in favor of the Blackwell heirs admits that the note of Wright and Epperson for the undivided one-sixth which was free from lien became free because Epperson paid the note. This recitation binds the plaintiff (Smith) who claims-under Epperson by subsequent purchase, and under this admission defendant purchasing under the liens in favor of the Blackwell heirs and Dixon gets title to all the land.
“That the Dixon mortgage, by conveying title to the whole league of land and then reciting the interest to be an undivided one-half and. by the use of the word convey, makes an estoppel, which estoppel binds the plaintiff (Smith) as subsequent purchaser under Epperson from claiming that Epperson did not have an unencumbered half interest with, which to satisfy the Dixon lien.
“That the purchase by defendant of five-sixths undivided interest in, [572]*572the land under the judgment of foreclosure in favor of the Blackwell heirs, and the purchase by defendant of the undivided one-half interest under the Dixon judgment, gave defendant the whole right, title, and interest of the estate of B. H. Epperson in the land, in that the said judgments show that Epperson and Wright bought the whole of the land and .gave vendor’s liens thereon for the purchase money, and that Epperson afterwards gave the Dixon mortgage on an undivided one-half of the whole, and the judgment in favor of the Blackwell heirs shows that B. H. Epperson in his lifetime paid off the vendor’s lien on an undivided one-sixth, and the orders of sale on said respective judgments and the sales and deeds thereunder show that defendant E. S. Willis bought the undivided five-sixths under the decree in favor of the Blackwell heirs and then bought all of Dixon’s lien interest of an undivided one-half of the whole as far as the estate of Epperson had land left to meet his contract with Dixon for the undivided one-half.
“ That the defendant had acquired an undivided five-sixths of the land under the decree in favor of the Blackwell heirs and an undivided half interest under the Dixon decree, and that at the date of the levy of the execution and sale thereunder under which plaintiff claims Epperson’s estate could assert no interest in the land except the right to redeem from the Blackwell and Dixon heirs, and the plaintiff having failed to redeem, the defendant by subsequent purchase under said liens acquired title to the land clear of any rights plaintiff acquired under his purchase at the •execution sale.”
While some of the special charges requested and refused may not be technically correct in every particular, they were sufficient to call the attention of the court to the rules of law which we think applicable to and ■decisive of the controlling question in this case, if Epperson paid the one-sixth of the purchase money to the heirs of Blackwell Avhich released the land to that extent from the vendor’s lien during the existence of the partnership of Epperson and Wright, then the presumption would obtain that the payment was made with partnership funds.
We think it unnecessary, however, to further discuss this point, for the execution under which appellee purchased was not against the firm of Epperson & Wright, but against the estate of Epperson in the hands of the executors.
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Acker, Presiding Judge.
B. H. Epperson and A. U. Wright owned the Talley league on which the Barrington plantation is situated, having-purchased it from the six heirs of Blackwell. For the purchase money they executed and delivered their six promissory notes each secured by lien retained against an undivided one-sixth of the land. In February, 1878, Epperson executed a mortgage to Sallie Dixon containing the following clauses: “Do hereby bargain, sell, and convey unto the said Sallie Dixon, her heirs and assigns forever, one league of land surveyed in the name of David Talley, situated in Brazoria County upon which is what is known as the Barrington plantation. * * * It is understood that my interest in said land is the undivided one-half thereof, and this instrument is intended only to cover that.'' This mortgage was. recorded in Brazoria County in September, 1878.
On July 31, 1878, Wright conveyed his half interest in the land to. Epperson, who assumed payment of all debts against the firm of Epperson & Wright. This deed was recorded in Brazoria County February 6, 1880. B. H. Epperson died leaving a will appointing J. P. Russell and R. B. Epperson general independent executors and E. S. Epperson special independent executor. The will was admitted to probate October 2, 1878, and the executors qualified.
On February 20, 1879, Epperson's executors executed to P. J. Willis & Bro. a deed of trust on the league of land to secure the payment of notes held by Willis & Bro. amounting to about $20,000. Lawson, the trustee named in this deed, sold the land under the deed of trust on the 4th day of May, 1880, to P. J. Willis & Bro., and they took possession immediately thereafter. P. J. Willis & Bro. conveyed the land to appellant, and he was in possession at the time the execution under which the appellee claims was levied on the land.
On May 20, 1880, the Dixon mortgage was foreclosed on an undivided one-half of the league by decree of the District Court of Marion County. On December 1, 1880, appellee recovered judgment in the District Court of Marion County against the executors of Epperson and against A. U. Wright as surviving partner for $1283.33. On May 24, 1881, the heirs of Blackwell obtained judgment against the executors of Epperson upon [571]*571the purchase money notes executed by Epperson and Wright and foreclosing the liens upon the undivided five-sixths of the land. This judgment recited that the notes given by Epperson and Wright for the other one-sixth had been paid off by Epperson and the vendor’s lien thereon discharged.
On June 21, 1881, execution was issued against the executors of Epperson on the judgment in favor of appellee, under which the entire league was sold in September, 1881, and bought in for appellee by his attorney, who afterwards, on May 5, 1883, conveyed the land by quit claim deed to appellee. On November 1, 1881, five-sixths undivided interest in the league was sold under an order of sale issued on the decree of foreclosure in favor of the Blackwell heirs. Appellant purchased at this sale.
In April, 1882, an undivided half interest in the league was sold under an order of sale issued on the decree of foreclosure in favor of Dixon, and appellant purchased at this sale.
On a former trial in the court below there was verdict and judgment for appellee for one-sixth of the land and for an annual rent of $833.33 from the date of his purchase. Willis appealed and the judgment was reversed and the cause remanded. 66 Texas, 43.
On the last trial there was verdict and judgment for appellee for an undivided one-twelfth of the land and $2000 as rent therefor, from which judgment this appeal is prosecuted.
It is contended that the court erred in refusing to give special charges: requested by appellant to the effect—•
“That the decree of foreclosure in favor of the Blackwell heirs recites that Epperson paid the one-sixth of the purchase money which freed the undivided one-sixth of the land from vendor’s lien, and the plaintiff can not recover the one-twelfth he claims unless he shows that Epperson paid the one-sixth before he bought from Wright, and having failed so to prove your verdict must be for the defendant.
“ That the recitation in the judgment of foreclosure in favor of the Blackwell heirs admits that the note of Wright and Epperson for the undivided one-sixth which was free from lien became free because Epperson paid the note. This recitation binds the plaintiff (Smith) who claims-under Epperson by subsequent purchase, and under this admission defendant purchasing under the liens in favor of the Blackwell heirs and Dixon gets title to all the land.
“That the Dixon mortgage, by conveying title to the whole league of land and then reciting the interest to be an undivided one-half and. by the use of the word convey, makes an estoppel, which estoppel binds the plaintiff (Smith) as subsequent purchaser under Epperson from claiming that Epperson did not have an unencumbered half interest with, which to satisfy the Dixon lien.
“That the purchase by defendant of five-sixths undivided interest in, [572]*572the land under the judgment of foreclosure in favor of the Blackwell heirs, and the purchase by defendant of the undivided one-half interest under the Dixon judgment, gave defendant the whole right, title, and interest of the estate of B. H. Epperson in the land, in that the said judgments show that Epperson and Wright bought the whole of the land and .gave vendor’s liens thereon for the purchase money, and that Epperson afterwards gave the Dixon mortgage on an undivided one-half of the whole, and the judgment in favor of the Blackwell heirs shows that B. H. Epperson in his lifetime paid off the vendor’s lien on an undivided one-sixth, and the orders of sale on said respective judgments and the sales and deeds thereunder show that defendant E. S. Willis bought the undivided five-sixths under the decree in favor of the Blackwell heirs and then bought all of Dixon’s lien interest of an undivided one-half of the whole as far as the estate of Epperson had land left to meet his contract with Dixon for the undivided one-half.
“ That the defendant had acquired an undivided five-sixths of the land under the decree in favor of the Blackwell heirs and an undivided half interest under the Dixon decree, and that at the date of the levy of the execution and sale thereunder under which plaintiff claims Epperson’s estate could assert no interest in the land except the right to redeem from the Blackwell and Dixon heirs, and the plaintiff having failed to redeem, the defendant by subsequent purchase under said liens acquired title to the land clear of any rights plaintiff acquired under his purchase at the •execution sale.”
While some of the special charges requested and refused may not be technically correct in every particular, they were sufficient to call the attention of the court to the rules of law which we think applicable to and ■decisive of the controlling question in this case, if Epperson paid the one-sixth of the purchase money to the heirs of Blackwell Avhich released the land to that extent from the vendor’s lien during the existence of the partnership of Epperson and Wright, then the presumption would obtain that the payment was made with partnership funds.
We think it unnecessary, however, to further discuss this point, for the execution under which appellee purchased was not against the firm of Epperson & Wright, but against the estate of Epperson in the hands of the executors. Under this writ only the property of Epperson’s estate or the interest of that estate in the property belonging to the firm of Wright & Epperson could be levied. If appellee relied for recovery upon the fact that the land was the property of the firm at the time the levy was made under which he purchased, the decree of foreclosure in favor of the Blackwell heirs reciting that Epperson paid the one-sixth of the purchase money, it devolved upon him to prove that the payment was made during the existence of the partnership of Epperson & Wright, Appellee contends that as there was no evidence as to the time when this [573]*573payment was made .it must be presumed that it was made at the time of the purchase. Such presumption can not be indulged in the face of the recitation in the deeds to Epperson & Wright that no part of the purchase money was paid at the time of the purchase.
Appellee having purchased under an execution against the estate of Epperson is in privity with Epperson, and has in virtue of his purchase only such rights as Epperson’s estate had at the time of the levy of the-execution. Being a privy in estate with Epperson he is bound by the recitations in the decree in favor of the Blackwell heirs as Epperson would be.
Did the release of the vendor’s lien against one-sixth of the land obtained by the payment of one-sixth of the purchase money by Epperson, enure to the benefit of the Dixon mortgage? It was in effect decided in the former appeal that it did if the mortgage contained sufficient covenants of warranty. (The mortgage was not in evidence on the former appeal.) It is conceded that the mortgage contains no express covenant of warranty, but it is contended that the recitation in the conveying clause, the use of the word “ convey,” the recitation that Epperson owned an undivided one-half of the land, together with the recitation in the decree in favor of the Blackwell heirs, constitute an estoppel against Epperson and those in privity with him.
Mr. Justice Nelson delivering the unanimous opinion of the court in Van Rensselaer v. Kerney, 11 Howard, 643, after a very full review of' many leading authorities, says: “The principle deducible from these authorities seems to be that whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the-face of the instrument by way of recital or averment that he is seized or possessed of a particular estate in the premises and which estate the deed purports to convey, or, what is the same things, if the seizin or possession of a particular estate is affirmed in the deed either in express terms or by necessary implication, the grantor and all persons in privity with him shall t be estopped from ever afterward denying that he was so-seized and possessed at the time he made the conveyance. The estoppel works upon the estate and binds an after-acquired title as between parties and privies.” Carver v. Jackson, 4 Pet., 7; Irvine v. Irvine, 9 Wall., 625; Box v. Lawrence, 14 Texas, 555, 556; 21 Texas, 763; 28 Texas, 561; Perin v. Perin, 62 Texas, 479, 480.
If Epperson would be estopped from denying that his payment of one-sixth of the purchase money and consequent release of that much of the land from the vendor’s lien enured to the benefit of and that the one-sixth of the land thereby became subject to the Dixon mortgage, it seems, that appellee, claiming under Epperson by purchase subsequent and with notice, would be likewise estopped.
Under the recitations in the decree of foreclosure in favor of the [574]*574Blackwell heirs and the recitations in the mortgage deed to Dixon, Epperson could not be heard to deny that appellant acquired an undivided five-sixths of the land by his purchase under the former decree, nor could he be heard to deny that appellant acquired an undivided half of the land by his purchase under the decree of foreclosure in favor of Dixon to the extent of interest owned by him in the land free from prior liens at the time the decree of foreclosure was entered. We think that appellee is equally estopped.
At the time the execution was levied under which appellee claims he had notice of the decrees foreclosing the liens in favor of the Blackwell heirs and Dixon, and by his purchase he acquired only the equity of redemption then held by Epperson’s estate. He acquired the right to redeem the land from the decrees of foreclosure at any time prior to the execution of these decrees by sales made thereunder. There is no pretense that he ever offered to exercise his right to redeem, and we think Ms right was lost by the execution of the decrees. Fisher v. Foote, 25 Texas Supp., 311; Willis v. Smith, 66 Texas, 43.
We think the court erred in refusing to charge the jury upon the questions presented by the special charges requested.
It is also insisted that the court erred in excluding the deeds of trust executed by the executors of Epperson to Farley and Lawson, trustees, to secure the indebtedness of the estate to P. J. Willis & Bro. The objection to these instruments was upon the ground that the executors had no power to execute them. This question was decided against appellant on the former appeal, the instruments having been offered and excluded on the former trial on the same ground. We are bound by the decision then made, however much we may be inclined to a different view.
Appellee had charged in his petition that appellant had fraudulently taken a large quantity of personal property belonging to the Epperson estate, and had never accounted to the estate for the proceeds of the property, and also charged appellant with fraud in his several purchases of the land. Appellant was in possession of the land and personal property under sales and purchases under these deeds of trust at the time appellee’s execution was levied. Appellee had introduced the deeds of trust in evidence for a limited purpose, and we think appellant should have been permitted to offer them for any purpose except to prove title. Under the former decision in this case they were not admissible for the purpose of proving title in appellant, but after they had been offered by appellee for a limited purpose we think they should have been admitted in behalf of appellant to show how he came into possession of the personal property and as tending to disprove the charge of fraud.
We deem it unnecessary to .consider other questions presented, as they become immaterial under our view of the law of the case.
Appellee filed cross-assignments of error, but they are not referred to in [575]*575Ms brief, nor are the independent propositions contained in- his brief predicated upon his assignments of error, nor are they in any way germane to his assignments. The questions attempted to be presented by appellee’s independent propositions can not, therefore, be considered.
Because of the errors indicated we are of opinion that the judgment of the court below should be reversed and the cause remanded.
Reversed and remanded.
Adopted January 29, 1889.