Bonnee, Associate Justice.
James H. Doherty and others, plaintiffs below, appellees in this court, some as children and others as grandchildren of Alzira Doherty, deceased, wife of Jeremiah Doherty, also deceased, brought suit on the 27th of August, 1873, against defendants below, Joseph Wright, George Brock, and Robert Batton, in the ordinary form of [38]*38trespass to try title, to recover the one-half community interest of the said Alzira in and to a tract of four hundred and six acres of land, claimed by them to have been sold by Jeremiah Doherty after her death.
The plaintiffs, by affirmative allegations, averred that this sale was not made to pay indebtedness of the community; that there was no necessity for the same; and that it was made in violation of law and of their rights.
The defendants answered by general and special exceptions, and plea of not guilty.
It was admitted on the trial that the land in controversy was the community property of Alzira and Jeremiah Doherty; that she died intestate, in the year 1852 or 1853; that there xvas no administration on her estate; that the thirty acres claimed by defendant Batton was sold during her lifetime; that on the 17th of October, 1856, the said Jeremiah sold and exchanged three hundred and seventy-six acres of the land in controversy with Lemuel Kimbro for one hundred and ninety-eight acres, part of the McCracken survey; and that this land so taken in exchange was owned by Jeremiah Doherty at his death.
The testimony tended to prove the heirship of the plaintiffs as alleged; that the two tracts of land so exchanged, with the improvements, were' at the time about equal in value; that the defendants Wright and Brock claimed title to the three hundred and ninety-six acres of land in controversy under this exchange, and conveyances down to them, and were in possession; that at the death of Alzira this land was the homestead of the family; that Jeremiah died about the year 1861; that an administration was had upon his estate; but whether the one hundred and ninety-eight acres of land so received by him was inventoried as a part thereof, or what' disposition was made of the same, or any portion of his estate, is not shown. There is no evidence that there was any community indebtedness at the death of the wife, except that which was paid out of the community personal assets, [39]*39or that the plaintiffs ever actually received anything from the estate of Alzira, or from Jeremiah or his estate, in lieu of their ancestor’s community interest.
The defendants introduced in evidence two deeds: one, a joint deed of date 11th February, 1870, made by L. E. Sides, purporting to act as guardian of certain of the minor plaintiffs, and by John Felps, purporting to act as guardian of certain others of them, conveying to one Joseph Wright their interest of one-half in and to said one hundred and ninety-eight acres of land for the consideration of $76.23; the other, a deed of date November 15, 1869, made by John T. Murray, purporting to act as guardian of the two remaining plaintiffs, then minors, James H. and Adaline Doherty, conveying to Joseph Wright their interest in the land for the consideration of $152.46.
There was no evidence that Sides and Felps were the guardians for the plaintiffs for whom they purported to act, except the fact of the execution as such of said deed, and no recital therein either that the sale was made or confirmed by order of any court; neither was there any evidence that John T. Murray was guardian for the plaintiffs for whom he purported to act, except the fact of the execution as such of the deed made by him and the testimony of the witness E. W. Bush, “ that he knew Murray was acting as guardian of Jimmy and Adaline Doherty, and knew the land sold by him as guardian.” There was a recital in this deed that the sale was made by order of the Probate Court of Cherokee county, but no recital of any confirmation of the sale. Plaintiff J. H. Doherty testified “ that he was not acquainted with John T. Murray; never knew that he was appointed as his guardian, and never received anything from him whatever.”
A jury was waived and the cause submitted to the court. Judgment was rendered for the plaintiffs against the defendants Wright and Brock for an undivided one-half interest in the three hundred and ninety-six acres of land, and for partition ; and in favor of defendant Button for the thirty acres [40]*40claimed by him. Motion for new trial for defendants Wright and Brock, for the alleged reasons that the judgment was not authorized by the law and the evidence,' but was contrary thereto. Motion overruled, and these two defendants appeal and assign as error—
1. The court erred in giving judgment for plaintiffs for one-half the land in controversy.
2. The court erred in overruling the motion for a new trial.
The two errors assigned, being substantially the same, will be considered together.
There was no question raised in the pleadings, evidence, or argument of counsel as to the statute of limitations, stale demand, valuable improvements, or purchase for a valuable consideration, without notice, in good faith; and the testimony fails to show satisfactorily that the plaintiffs ever actually received anything in lieu of the community interest of their deceased ancestor.
The plaintiffs, by affirmative allegations, negative the equities contemplated by our statute and decisions on the subject of community indebtedness and necessity of sale to pay the same, or of having received, by advancement or otherwise, property in lieu of the interest sued for. The- evidence sustains these allegations sufficiently to make a prima-facie case, and this was not satisfactorily rebutted by testimony in behalf of the defendants.
Under our statute, if the deceased spouse leave a child or children, they take by inheritance the community half of the ancestor, subject to the community indebtedness. (Paschal’s Dig., art. 4642.)
This applies to the homestead, subject to the use of the same, as such, by the survivor. (Clark v. Noland, 38 Tex., 416; Hartman v. Thomas, 37 Tex., 90; Magee v. Rice, 37 Tex., 483; Walker v. Young, 37 Tex., 519; Bell v. Schwarz, 37 Tex., 572; Sossaman v. Powell, 21 Tex., 664.)
The land in controversy was community property, and the
[41]*41o sale was made after the death of the wife, and not under any of the equities contemplated by our statute or decisions which would authorize the same. It was not made under a regular administration or guardianship, or by virtue of special proceedings authorized by the community act of 1856, if, under the facts of this case, as applied to that of Magee v. Rice, 37 Tex., 483, the aid of this statute could have been invoked. It follows, then, that the sale by the surviving husband would not divest the title of the plaintiffs as heirs of the deceased wife, neither would it bar their recovery of the same, unless they are estopped by reason of having received and appropriated through their legal guardians the land, or- proceeds of the same, which was received by the surviving husband for that in controversy. This defense, if sustained by the evidence, could be made available under the plea of not guilty in trespass to try title. (Mayer v. Ramsey, 46 Tex., 371.)
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Bonnee, Associate Justice.
James H. Doherty and others, plaintiffs below, appellees in this court, some as children and others as grandchildren of Alzira Doherty, deceased, wife of Jeremiah Doherty, also deceased, brought suit on the 27th of August, 1873, against defendants below, Joseph Wright, George Brock, and Robert Batton, in the ordinary form of [38]*38trespass to try title, to recover the one-half community interest of the said Alzira in and to a tract of four hundred and six acres of land, claimed by them to have been sold by Jeremiah Doherty after her death.
The plaintiffs, by affirmative allegations, averred that this sale was not made to pay indebtedness of the community; that there was no necessity for the same; and that it was made in violation of law and of their rights.
The defendants answered by general and special exceptions, and plea of not guilty.
It was admitted on the trial that the land in controversy was the community property of Alzira and Jeremiah Doherty; that she died intestate, in the year 1852 or 1853; that there xvas no administration on her estate; that the thirty acres claimed by defendant Batton was sold during her lifetime; that on the 17th of October, 1856, the said Jeremiah sold and exchanged three hundred and seventy-six acres of the land in controversy with Lemuel Kimbro for one hundred and ninety-eight acres, part of the McCracken survey; and that this land so taken in exchange was owned by Jeremiah Doherty at his death.
The testimony tended to prove the heirship of the plaintiffs as alleged; that the two tracts of land so exchanged, with the improvements, were' at the time about equal in value; that the defendants Wright and Brock claimed title to the three hundred and ninety-six acres of land in controversy under this exchange, and conveyances down to them, and were in possession; that at the death of Alzira this land was the homestead of the family; that Jeremiah died about the year 1861; that an administration was had upon his estate; but whether the one hundred and ninety-eight acres of land so received by him was inventoried as a part thereof, or what' disposition was made of the same, or any portion of his estate, is not shown. There is no evidence that there was any community indebtedness at the death of the wife, except that which was paid out of the community personal assets, [39]*39or that the plaintiffs ever actually received anything from the estate of Alzira, or from Jeremiah or his estate, in lieu of their ancestor’s community interest.
The defendants introduced in evidence two deeds: one, a joint deed of date 11th February, 1870, made by L. E. Sides, purporting to act as guardian of certain of the minor plaintiffs, and by John Felps, purporting to act as guardian of certain others of them, conveying to one Joseph Wright their interest of one-half in and to said one hundred and ninety-eight acres of land for the consideration of $76.23; the other, a deed of date November 15, 1869, made by John T. Murray, purporting to act as guardian of the two remaining plaintiffs, then minors, James H. and Adaline Doherty, conveying to Joseph Wright their interest in the land for the consideration of $152.46.
There was no evidence that Sides and Felps were the guardians for the plaintiffs for whom they purported to act, except the fact of the execution as such of said deed, and no recital therein either that the sale was made or confirmed by order of any court; neither was there any evidence that John T. Murray was guardian for the plaintiffs for whom he purported to act, except the fact of the execution as such of the deed made by him and the testimony of the witness E. W. Bush, “ that he knew Murray was acting as guardian of Jimmy and Adaline Doherty, and knew the land sold by him as guardian.” There was a recital in this deed that the sale was made by order of the Probate Court of Cherokee county, but no recital of any confirmation of the sale. Plaintiff J. H. Doherty testified “ that he was not acquainted with John T. Murray; never knew that he was appointed as his guardian, and never received anything from him whatever.”
A jury was waived and the cause submitted to the court. Judgment was rendered for the plaintiffs against the defendants Wright and Brock for an undivided one-half interest in the three hundred and ninety-six acres of land, and for partition ; and in favor of defendant Button for the thirty acres [40]*40claimed by him. Motion for new trial for defendants Wright and Brock, for the alleged reasons that the judgment was not authorized by the law and the evidence,' but was contrary thereto. Motion overruled, and these two defendants appeal and assign as error—
1. The court erred in giving judgment for plaintiffs for one-half the land in controversy.
2. The court erred in overruling the motion for a new trial.
The two errors assigned, being substantially the same, will be considered together.
There was no question raised in the pleadings, evidence, or argument of counsel as to the statute of limitations, stale demand, valuable improvements, or purchase for a valuable consideration, without notice, in good faith; and the testimony fails to show satisfactorily that the plaintiffs ever actually received anything in lieu of the community interest of their deceased ancestor.
The plaintiffs, by affirmative allegations, negative the equities contemplated by our statute and decisions on the subject of community indebtedness and necessity of sale to pay the same, or of having received, by advancement or otherwise, property in lieu of the interest sued for. The- evidence sustains these allegations sufficiently to make a prima-facie case, and this was not satisfactorily rebutted by testimony in behalf of the defendants.
Under our statute, if the deceased spouse leave a child or children, they take by inheritance the community half of the ancestor, subject to the community indebtedness. (Paschal’s Dig., art. 4642.)
This applies to the homestead, subject to the use of the same, as such, by the survivor. (Clark v. Noland, 38 Tex., 416; Hartman v. Thomas, 37 Tex., 90; Magee v. Rice, 37 Tex., 483; Walker v. Young, 37 Tex., 519; Bell v. Schwarz, 37 Tex., 572; Sossaman v. Powell, 21 Tex., 664.)
The land in controversy was community property, and the
[41]*41o sale was made after the death of the wife, and not under any of the equities contemplated by our statute or decisions which would authorize the same. It was not made under a regular administration or guardianship, or by virtue of special proceedings authorized by the community act of 1856, if, under the facts of this case, as applied to that of Magee v. Rice, 37 Tex., 483, the aid of this statute could have been invoked. It follows, then, that the sale by the surviving husband would not divest the title of the plaintiffs as heirs of the deceased wife, neither would it bar their recovery of the same, unless they are estopped by reason of having received and appropriated through their legal guardians the land, or- proceeds of the same, which was received by the surviving husband for that in controversy. This defense, if sustained by the evidence, could be made available under the plea of not guilty in trespass to try title. (Mayer v. Ramsey, 46 Tex., 371.)
This, then, narrows the issues down to this controlling question: Are the plaintiffs, under the evidence in this case, estopped by the sale of this one hundred and ninety-eight acres of laud by those who purported to act as their guardians ?
An estoppel does not give an estate, or divest another of an estate in lands, but merely binds the interest by a conclusion which precludes the party against whom it operates from asserting or denying the state of the title. (3 Wash, on Real Prop., 96.)
Parties under disability, as infants and married women, are not estopped unless their conduct has been intentional and fraudulent. (Bigelow on Estoppel, 486.)
The lawful acts of a duly appointed and acting guardian, performed in the proper discharge of his duties, under the orders of a court of competent jurisdiction, would bind his ward; but when the acts of one purporting to be the guardian are relied upon to bind the ward, it is necessary to show by competent testimony that the party purporting to act as such was the guardian and had the proper authority to execute the power invoked. The power to bind must exist to make the [42]*42act valid, and when relied upon as a muniment of title must be shown. In deraigning title under a sheriff’s deed, a valid judgment and execution must be proven to support the deed. (Criswell v. Ragsdale, 18 Tex., 443, and authorities cited.) Though a deed recites that it was made by virtue of a power of attorney, this of itself is not sufficient evidence of the power, but it should be proven otherwise, expressly or presumptively. (Watrous v. McGrew, 16 Tex., 506.)
It is a general rule, that the declarations or admissions of one who assumes to act as the agent of another are not of themselves admissible to prove such agency. (Latham v. Pledger, 11 Tex., 439.)
In commenting upon the effect of recitals in sheriff’s deeds, the court, in Howard v. Hortli, 5 Tex., 311, though commending the practice as productive of great convenience, says: “ The recital of the power to sell and convey did not give the right; nor was it evidence of the right.”
There was no evidence that the purported guardians had ever been duly appointed, or that they in fact acted as such, except the bare execution of the deed, and as to J. T. Murray, the testimony of E. W. Bush that he so acted; and no evidence, or recital even in one of the deeds, that the sales were made by order of any court; and no evidence or recitals in either of the deeds that the sales were ever confirmed, as expressly required by statute. This confirmation is intended for the protection of the minors and as a prerequisite to vest title in the purchaser. (Paschal’s Dig., arts. 1327, 3909.)
Ho error being apparent in the record before us, the judgment below is affirmed.
Judgment aegtrmed.