E. A. Pearson, Adm'r, v. Giles H. Burditt, 26 Tex. 157

Roberts, J. This cause was before this court by the name of Burditt v. Silsbee, and reported in the 15th volume of Texas Reports, 604, where a full statement of the facts will be found, except those which relate to the proof of fraud in Burditt’s title. In the opinion in that case, it was said that “if the plaintiff can prove, as he insists, that there was fraud in the sale, to which the defendant was privy, or of which he is chargeable with notice, then, it is true, his title will not protect him either in his possession or his improvements.

But if the sale was fairly made, and the defendant was a bona fide purchaser for value, his title will not be affected by the irregularities in the proceedings of the administrator and th,e Probate Courts.” (Ib., 620.) By an amendment the plaintiff pleaded fraud in the procurement of the deed by defendant Burditt, and defendant pleaded the statute of limitations of three years. A verdict was rendered for defendant.

Defendant does not admit' facts which constitute him a fraudulent purchaser, as contended for by the counsel for plaintiff, for he nowhere admits that the land sold for less than its market value at the administrator’s sale, or that his purchase in any way prevented other persons from bidding more for the land than he did. Whatever may be said about the sufficiency of the proof upon the issue of fraud, the defendant showed that he had been in possession of the land for three years before the institution of the suit, holding by a regular chain of title from and under the sovereignty of the soil.

And if that is a good defence in this case, he is entitled to the. verdict which he obtained, though that might be contrary to the view of the law entertained and announced in the charge of the court. We think it is a good defence, notwithstanding the jury might have believed that the fraud in Burditt’s deed was sufficiently proved. As a mere question of the validity of Burditt’s title, it is true, as stated in the opinion above quoted, the plaintiff was in_ a situation to avoid Burditt’s deed for fraud and have it set aside,-v being the administrator of Silsbee’s estate.

Had some one else brought suit against Burditt, claiming the land, not under Silsbee, but under a junior patent granted to some one else, then he would not have been in a situation to avoid Burditt’s deed for fraud. It was in this point of view that the remark was made in the opinion quoted, that plaintiff could avoid Burditt’s deed by showing it to be fraudulent. It was made with reference to the validity of Burditt’s title, and not with reference to its capacity to support the defence of the statute of limitations of three years.

It simply asserted the principle that Burditt’s deed was voidable, and the facts which constituted its voidableness could be shown in this suit, so as to have the legal title divested out of Burditt and returned to the heirs or devisees of Silsbee. The administrator having power to sell, and having sold the land, the legal title passed to Burditt, and from the time it was recorded he held under a regular chain of title from and under the sovereignty of the soil. It was a good and valid title against all the world, except the administrator of Silsbee’s estate or the heirs or devisees of Silsbee.

As to them it was voidable, not void. As to them it stood prima facie as a good title, until they should institute a suit in some competent court, and show such facts as would establish, not that the‘legal title had not passed, but that Burditt had fraudulently obtained the legal title to the land, and thereby obtain a judgment of recovery setting aside the deed and re-investing the title in those thus shown by the adjudication to be equitably entitled to it.

The evidence of the true facts relating to such a transaction is as liable to be lost by lapse of time as of those relating to any other, and therefore it is just as reasonable that some limita-, tion should be fixed for the institution of such a suit as any other. The law has fixed three years where the purchaser goes into possession, holding under such voidable title. (O. & W. Dig., art. 1,328.) Such a party holds for himself, and not in trust for his vendor, and therefore liis possession is adverse.

It may be the inferior title as compared to that which the vendor can assert; still it is a title until destroyed by the establishment of the superior title. The leading object and effect of the statute of limitations are to make three years adverse possession of land mature the inferior title in the hands of the possessor into the superior title. (Porter’s lessee v. Cocke, Peck’s R. 80; Humbert v. Trinity Church, 24 Wend. R., 586.) We do not decide this case upon any other principle than those which would govern us were Burditt’s only a color of title instead of a title.

The terms “ intrinsic fairness and honesty,” embraced in the definition of color of title in our statute, relate to the means of proving the right of property in the land, so as to make the title equitably equal to a regular chain. •Judgment affirmed.