
    Easterling and others v. Blythe and others.
    Where the plainfciffis surprised by the rejection of his evidence, he may take a nonsuit, and. then move to set it aside? and if the evidence was erroneously rejected, and the court should overrule the motion, the judgment will be revised on appeal or writ or error. (Note 28.)
    A deed to an administrator vests the title in him only sub modo, and for the purposes of administration. He takes only temporarily, for the benefit of creditors, if any, and the heirs,, and. his right determines with the period of his administration. Because the administrator may sue, it does not therefore follow that the heirs may not also sue — either jointly with the administrator or without joining him, where their interests require it, ana there are no creditors whose rights would be thereby affected. (Note 29.)
    But if the heirs may not sue previously, they certainly may do so for whatever remains of the estate after it has" been fully administered and its liabilities to creditors extinguished. And such will be presumed to be the case, in the absence of evidence to the contrary, wliero the period of administration is fixed by law and has elapsed.
    In an action of trespass to try title, it is not material whether the title of the plaintiff be a legal or an equitable title. The statute, (Hart. Dig., art. 3221,) which directs that the action-shall be tried “conformably to the principles of trial by ejectment,” could not have been intended to introduce all the incidents and consequences attached to that form of action, in the common law. Its object was, not to determine upon what character of title an action may be maintained, but simply to furnish a mode of procedure to ascertain in whom the* property resides. (Note 30.).
    Appeal from Washington. This was an action of “trespass to try title,” ■brought in October, 1848, by the appellauts, in right of inheritance, as heirs of Charles Baird, deceased. On the trial, the plaintiffs offered in evidence a. deed from E. D. Jackson to John P. Coles, administrator of their ancestor, diaries Baird, bearing date on the 7th day of May, 1838. The deed acknowledged the receipt of the consideration, and described the land which it conveyed to the administrator, as a “part of the succession” of the deceased, Chairles JSaird. The plaintiffs offered the dee’d as evidence of title in them•selves as heirs of Baird; the defendants objected to its admission in evidence, •and the court sustained the objection, on the ground that the deed ‘‘did not show sufficient legal title in the plaintiffs to enable them to maintain their action.” Tlie plaintiffs excepted to the opinion of the court, and took a non-suit, and thereafter moved the court to set aside the nonsuit and reinstate the case, upon the ground that the court erred in rejecting the deed offered in evidence, and they were thereby forced to take a nonsuit. The court refused the ¡application, and the plaintiffs appealed.
    
      A. M. Lewis, for appellants.
    I. It depends upon the ability of the plaintiffs to maintain a suit of this -kind, upon a mere equitable title, whether they were entitled to the new trial. Notwithstanding the Legislature abolished the technical action of ejectment, (which never was of force here,) and adopted the action of trespass to try title, it would seem that our entire judicial system was not changed by the magic ■of a name; and especially, as all the previous and subsequent legislation tends to show the contrary. It can hardly be supposed that the Legislature designed that this class of cases alone should be governed by the common-law •rules of practice. It can hardly be necessary to show that the heirs of Baird had an equitable title to the land ; and from the terms of the statute regulating the action of trespass to try titles, it seems that an equitable title was deemed •sufficient. (Doalc v. Smith’s adin’x, 3 Tex. R., 115.) But an equitable title will be sufficient to maintain ejectment. (6 Pet. R., 441, 442; 9 Wheat. R., •524 ; 3 Wash. C. C. R., 204; 16 Johns. R., 20; S Wheat., 097; B. & A., 52.)
    II. If, then, the action could have been maintained, even b3r amendment, it was the duty of the court below to have granted a new trial. And if the court below refused to do so, when it should, this court, in the exercise of its constitutional jurisdiction, will correct the error. It is an important object in the ■courts of this country to avoid protracted and expensive legislation, and it can hardly bo supposed that the defendants would have been in a worse condition ¡by reinstating the cause, and it undoubtedly would have saved oue of ■the parties the expense of the. commencement of a new suit.
    
      J. Willie, for appellees.
    I. It is respectfully submilted by the appellees, that there is no case before ■the court of which it eau take jurisdiction. The nonsuit was voluntary, and not the act of the court below. There is, therefore, no judgment from which an appeal lies. No party can he compelled to take a nonsuit. It is his privilege to risk his case before the jury. If the verdict be against him, he can .appeal from the judgment, and iiave corrected any error which may have been committed. It may be within the power of the District Court, under peculiar ■circumstances, to reinstate a cause after a nonsuit voluntarily taken. But if a plaintiff choose to go out of court, he cannot complain if his application to reinstate be refused. The party, by voluntarily abandoning the prosecution •of his suit, leaves himself without remedy, in cáse his motion to reinstate be •overruled.
    II. But, even if the court could revise a case brought up in this manner, there is no just ground to interfere in the present case, it was ruled by the District Court that the plaintiffs’ title, being merely equitable, was not sufficient. to sustain the action. The act of Congress under which the suit was brought (Laws of Texas, vol. 4, p. 136) clearly sustains this opinion. The statute abolishes only the fictitious forms of the action of ejectment at common law, and declares that the principles which govern that action shall control •the action of trespass to try title.
    The cardinal principle, applicable to ejectment at common law. is, that to -entitle the plaintiff'to recover, he must show a good legal title. An equitable 'title is not sufficient.
   WheeleR, J.

It is true that, under the practice which obtains in most of the common-law courts of this country, it is within the discretion of the eourt to reinstate a ease after the plaintiff has voluntarily suffered a nonsuit; and if the court refuse the application, its judgment will not be subject to revision. This, however, is but a rule of practice; and in the case of Ilolderman v. Craft, the Supreme Court of the Republic adopted a different rule, as being more convenient in practice, which has been recognized by this court. (3 Tex. R., 226.) The rule thus recognized is, that when the plaintiff is surprised by the rejection of his evidence, he shall not be compelled to proceed with the trial, but may take a nonsuit, and may then move to set aside the nonsuit and reinstate the case; and if the evidence was erroneously rejected, and the court refuse to reinstate, its judgments will be revised on appeal or writ ■of error.

Note 28. — Austin v. Townes, 10 T., 24; Peck v. Moody, 33 T., 84; Peck v. McKellav, 33 T., 234. When the plaintiff is forced to dismiss by a ruling of the court that is nQt erroneous, a motion to reinstate is addressed to the discretion of the court, and its refusal is not error. (Osborne-v. Scott, 13 T., 59.)

The objection to the admissibility of the deed in question is founded on the supposition that the legal title to the land conveyed by it did not vest in the heirs, and that this action can be maintained only by him in whom is the legal title.

The objection cannot be maintained. The title vested in the administrator, ■only sub modo, and for the purpose of the administration. 1-Ie took only temporarily, for the benefit of creditors, if any, and the heirs. His right determined with the period of his administration. Because the administrator may sun, it ■does not therefore follow that the heirs may not also sue, either jointly with the administrator or without joining him, where their interests require it, and there are no creditors whose right would be thereby affected.

But if the heirs may not sue previously, they certainly may do so, for whatever remains of the estate, after it has been fully administered and its liabilities to creditors extinguished. Such, it is to be presumed, was the case in this instance. The deed in question was made to Coles, as administrator, ten years before the bringing of this suit. The period of his administration was fixed by law at one year, and, in the absence of any evidence to the contrary, it will be presumed to have terminated at the end of that period. The legal presumption, therefore, is, that the administration had been long since closed, the liabilities of the estate extinguished, and the title or estate of the ancestor in the land, whatever that may have been, fully and absolutely vested in the heirs.

And, as respects the right of the heirs to maintain the action, it is not material whether their title be considered a legal or an equitable title. The law affords the same protection to the one as the other. We have repeatedly decided (hat, in respect fo personal property, the action may be maintained by the party in whom subsists the real ownership, irrespective of the question of whether his title be one of legal or equitable cognizance. And no reason is perceived why the same principle is not equally applicable to real property. We have heretofore determined that an equitable title may be interposed by a defendant to prevent a recovery in an action of trespass to try title, and we see no reason why a plaintiff may not recover upon such title. (Neill v. Keese, 5 Tex. R., 23.)

The statute to which we have been referred, (Hart. Dig., art. 3221,) which directs that the action shall be tried conformably to the principles of trial by ejectment,” could not have been intended to introduce all the incidents and consequences attached to that form of action in the common law. Its object was, not to determine upon what character of title an action may be maintained, but simply to furnish a mode of procedure to ascertain in whom the right of property resides.

We are of opinion that the conrt erred in rejecting the deed offered in evidence to show title in the plaintiffs, as heirs of Charles'Baird, and that the judgment be therefore reversed and the cause remanded for further proceedings.

Judgment reversed.

Note 29.- — Patton v. Gregory, 21 T., 513; Giddings v. Steele, 28 T., 732.

Note 30. — Miller v. Alexander, 8 T., 42; Wright v. Thompson, 14 T., 558: Scarborough v. Arrant, 25 T., 129. '  