
    C. C. De Witt and others v. Miller's Adm'r.
    As a general rule a question which is in substance a general demurrer to the sufficiency of the plaintiff's petition should, where tho defendant appears, be made in the court below. The verdict or decree cures all defects, imperfections, or omissions in the petition or statement of the cause of action, whether of substance or of form, if the issues joined be such as require proof of tho facts imperfectly stated or omitted, though it will not cure or aid a statement of a defective title or cause of action. (Koto 40.)
    Where laches or lapse of time is relied on by the defendant in an action for specific performance it should lie set up by plea or special exception in. all eases where the phiintiíf has not in the petition alleged’some grounds in explanation of his apparent laches or delay; in the latter ease the defendant is relieved from the necessity of setting up the mere lapse of time.
    Where the contract, for the specific performance of which the suit was brought, was of twelve years’ standing and there were no equitable circumstances alleged to account for the delay, the court said, The proof must have been of a potent character to have excused so long a delay, but it may have been adduced, and as there is no statement of facts we must presume that the proof, if necessary, was made. (Note 41.)
    A suit against a defendant in his individual capacity cannot in any way affect tho rights of those interested in an estate of which such defendant may*at tho timo be administrator.
    Where assets have been fraudulently alienated by an administrator in collusion with the vendee they may be pursued by-an administrator de bonis non, and the fact that a judgment has intervened, if obtained through fraud, cannot affect the principle or vary the rights of the parties. (Note 42.)
    Appeal from Bexar. The subject of this controversy was a league of land, being one of three leagues granted to Joseph Clements in 1830 or 1831 by the State of Coahuila'and Texas, and in which grant Green De Witt was jointly and equally interested. The said Green De Witt, having choice, selected this league as a portion of his share, and, as the petition averred, sold tho same to one Thomas R. Miller, authorizing and requiring, by a written instrument, the said Clements to convey title to the said Miller. Shortly afterwards the said De Witt departed this life and Miller perished at the fall of the Alamo, no-conveyance having been previously made by the said Clements in conformity with llie'written instructions from De Witt to that effect. In 1840 Sarah De Witt, as administratrix of G. Do Witt, filed her petition against the said J. D. Clements, praying among other matters that he might be divested of all title in the said league of land, and that the same might he vested in her as the said administratrix. In his answer Clements averred that this land had been sold by Green Do Witt in his lifetime to Thomas R. Miller, and that it then formed a part of Ills estate. By the decree in 1841 it appears that Clements moved that the heirs of Miller might bo admitted to appear as defendants and assert the rights derived through'tlicir intestate. The motion was overruled and it was adjudged that all the right, title, and interest of Clements be vested in the said Sarah De Witt as administratrix aforesaid, hut without prejudice to or preclusion of the rights of the heirs of Miller, jf any they had. The land was subsequently sold at public action by the said administratrix and purchased by C. C. De Witt.
    The petition in-this ease was filed in 1846 by J.P. Hawkins, administrator de bonis non of Thomas R. Miller, deceased, and among other things represented that the decree in 1841 was obtained by fraud and collusion between tho said Clements and the said administratrix of the estate of De Witt; that the said Clements was at that time the administrator of the estate of the said Miller, and neglected to file a defense for the said estate in the said suit. The petition prayed that the said Sarah Do Witt, as administratrix, the said C. C. De Witt, and the representatives of Clements, now deceased, be made parties, and that the title to the said league be fully vested in the heirs of the said Thomas R. Miller. The defendant Sarah De Witt, among other matters, denied all fraud and collusion between her and the said Clements in obtaining the decree of 1841. Averred that she know nothing of any sale or transaction which would authorize a conveyance from tho said Clements of the said league to the said Miller, and alleged facts inconsistent with any such supposition.
    
      C. C. De AVitt denied all collusion in obtaining the said land or any decree in connection therewith; that he had not nor did he ever have any knowledge of any title, right, or claim existing in Miller or his heirs to the said lamí. It did not appear when C. C. De AVitt purchased or went into possession.
    A jury being waived, the court decreed, in effect, that in the lifetime of all the parties, and before a conveyance was made by the said Clements, the said De AVitt had sold the land to Thomas 1Í. Miller, and the court, believing from the evidence that tlie purchase-money had been paid by the said Miller, and that C. C. De Wilt had notice of the claim of the heirs of Miller at the time of his purchase at. the sale mentioned in liis answer, decreed that all the interest of tlie heirs of the deceased Clements and of the deceased De AVitt, and also of C. C. De AVilt, should be vested in tlie plaintiff as the administrator of Tilomas R. Miller for the use and beiiefit of the heirs of the said Miller and others interested in his estate.
    It was agreed by the' attorneys of the parties that in case the judge had not-signed tin: statement of facts written out by him (no such statement appears in the transcript) the same should be certified as the statement of the case; that it should include all the documents referred ta on tile, and also tlie record in tlie cause of Sarah De AVitt, administratrix of Green De AVitt, deceased, v. Joseph D. Clements. By agreement, also, the appellants had leave to assign errors in this court. Tlie following were relied upon, viz :
    1st. That the facts set forth in the plaintiff’s petition do not entitle him to tlie relief prayed or warrant tlie judgment or decree of tlie court rendered in tlie cause.
    2d. Thai, the finding of the court sitting- as a jury did not determine the issues between the parties.
    3d. Thai the judgment was not. warranted by the finding of the court upon the issues oi fact formed hy the pleadings.
    
      Webb £• Oldham, for appellants.
    I. It appears from the plaintiff’s own showing that the demand set up is a stale demand, and barred by the statute of limitations. The claim of Miller originated previously to the year 1835. The decree in favor of De AVitt's administratrix against Clements was rendered on the 8th day of October, 1841, and this suit was not brought until the 20tli day of October, 1846. Over twelve years elapsed from the origin of-the claim until the institution of this suit, and five years from the rendition of the judgment in the ease of De AVitt’s administratrix against Clements in the Gonzales District Court. The claim had become stale by lapse of time, and tlie presumption is against its validity. (Sicard v. Davis, 0 Peters, 139; Holt v. Tilomas et al., 8 Peters, 420; Lupton v. Jauney, 13 Peters, 381; Miller v. McIntyre, 6 Peters, 61; Elmendorf v. Taylor, 10 Wheaton, 168; Johnson v. Johnson, 5 Ala. It., (new series,) 97; Story’s Eq., 1520; Smith v. Clay, 3-Brown’s S. C., 639, note.)
    It was barred by tlie statute of limitations. C. C. De AVitt did not hold in trust for tlie heirs and creditors of Miller’s estate, but in his own rig-lit and adverse to them. Tlie administratrix of De AVitt recovered the land from the administrator of Miller, who pleaded the title of his intestate.
    II. The petition showed a former adjudication in reference to the subject-matter of this suit between proper parties to litigate tlie same. The interest of the heirs of Miller could only be asserted throng]i the administrator, and a judgment against him is binding upon them. (Holt v. Clemmons, 3 Tex. R., 423; Thompson v. Dnncan, 1 Tex. R.; Moore v. Morse, 2 Tex. R.)
    If tlie (fcjcudanfc in that suit liad not pleaded the claim of liis intestate, it was liis duty to have done so, and lie would have been bound by tlie judgment and could not subsequently set np a claim which he had failed to plead in that suit. (Smith v. Power, 2 Tex. R.)
    The plaintiff in this suit, as administrator da bonis non, cannot set up the fraud of liis predecessor in the administration of tlie estate so as to avoid the judgment and decree rendered in the former suit. He is not only privy to that judgment, hut is in law the parly against whom it was rendered, that ls, tlie representative of (lie estate of Thomas It. Miller, deceased. Ho can no more set up the fraud of his predecessor than he can that of himself. (Hart. Dig., art. 1224.)
    if the former administrator committed a fraud in allowing a decree to he rendered against him, lie and his privies are hound by it, and' he is responsible upon his bond for maladministration. (Blount v. Darrooh, 4 Wash. O. C. It., G59; Walker v. Badcliffe, 2 Desau. It., 577; McClelland v. Chamber;}, 1 Bibb lt., 366; Allin v. Hall, 1 A. K. Marsh. It., 520 ; Ewing v. Handley, 4 Hitt. It., 348.) That was the only remedy. (Evans ®. Oakley,'2 Tex. It., 182.)
    Tlie saving in tlie decree of De Wilt’s Administratrix®. Clements, of (lie rights of the heirs of Miller, amounted to nothing. The interest- of the administrator and tlie heirs cannot be severed. The administrator is tlie proper person to assert tlie right of tlie heirs. (Ilolt ®. Clemmons, supra.)
    
    III. Tlie finding of tlie court, sitting as a jury, did not determine the issues between tlie parties. Before a judgment could have been legally rendered in favor of the plaint id', it was essential that the fraud in the judgment of De Witt’s Administratrix ®. Clements should have lieen fully proven and found by the court. The foundal ion for the relief sought is tlie alleged fraud between the parties to the judgment, and upon which the finding is wholly silent. Tlie verdict should affirm the facts which will authorize the judgment, and so a decree. (Burdine v. Shelton, 30 Yerg. 11., 41 ; Bain®. Cliilds, 1 Root It., 406; Sampson «. I-Iart, 1 Root R., 521; Ral tersou ®. U. S., 4 Cond. R., 98; Phillips v. Hill and Wife, 3 Tex. R., 307; 4 Port. R., 198.)
    
      W. II. Gordon, for appellee.
    I. It may be insisted upon the part of appellant that the suit between De Witt’s administratrix and Clements is a bar to this suit; but it will be seen by tlie record of that case that that suit was brought against Clements in Ins individual capacity and not as Miller’s administrator; and it will he further seen by tlie decree in that case that tlie court refused to permit Miller’s heirs to intervene and assert their rights, but rendered a decree in favor of De Witt’s administratrix without prejudice to any interest Miller’s heirs might have in and to the land in controversy; and there is no principle better settled than that a judgment cau affect the right of no person except those who are parties to the suit. A decree in a suit'in which executors are parties is not binding upon tlie heirs of their testator, unless such heirs are also parties to tlie suit. ([Dale v. Rosevelt, 1 Paige 33 ; 1 Muni. R., 394, 437, 455, 4.56; 3 Cowon R., 022.) A decree in chancery against a guardian, touching the real estate of his ward, does not affect tlie ward unless lie is made a party to the original suit. (2 IIow., 404.) A decree or judgment neither binds nor protects any one but those who are parties to it. (Bailey Eq. R., 284.)
    A cestui que trust is not bound by a decree rendered against his trustee in a ■caso where the cestui que trust is not a party to tlie suit. (10 Heigh R., 5.) A decree is binding and conclusive witli respect to the subject-matter on which it acts, but does uot affect tlie rights of third persons who were not parties to the cause in which the decree was rendered. (1 Brock. R., 126.)
    IT. It may be insisted by appellant that appellee’s right of action was barred by lapse of time. But it not being insisted upon in the court below, by plea or demurrer, it now comes too late. But admitting;, that the exception could now be taken, this is a trust estate against which the statute will uot bar. If a pmroliaser has notice of an existing trust at the time of the purchase he becomes himself trustee, notwithstanding the pureliase-money he lias paid. (American Eq. Dig., 3S1, see. 25 ; 1 Johns. Chau. R., 506.)
    A trustee caunot dispose of the trust estate to tlie prejudice of the cestui que trust, unless to a bona fide purchaser, without notice; if otherwise, it may be followed. (Aim*. Ea. Dig., 407, art. 290 ; 1 McCord’s Chan. R., 119.)
    
      When De Witt’s administratrix took the decree she took it with a reser-vat.ion of the equity of Miller’s heirs, and impliedly in law became their trustee; ami when C. C. De Witt purchased the land lie purchased the title of his father’s e-inte, and took the title with all the equities incident to it and reservations in tlie. face of the deed, and as such became, (he. trustee of Miller’s heirs; and had he had no notice of the equity of Miller’s heirs, they could liave reached the property in his hands as one of Green DcWitt’s heirs, (4II. & McXI. 11., BIT,198,) as their implied trustee, and so standing as their trustee he could not invoke the statute of limitations to his aid. In'general, an equity may he barred by the lapse of twenty years, but the bar of the statute of limitations will not be applied in equity to a cause purely equitable in its nature. (UlioeEq.lt., 110.)
    EongUi of l ime is no bar to a trust «dearly estnb'islied. (Arar. Eq. Dig., "!)0, se7‘. 11 !; 6 Wheaton, 408.) The claim of B filer's heirs could not be classed as a stale claim. Tlie contract was made in 1834 or ’33. The courts under t he Republic opened up in 1830 or ’37. Tlie 1 Tie decreed from Clements by De Wilt, hi 1841. and Miller’s administrator commenced suit in 1840; and taking i-.iD consideration tiie unset! led condition of the western country, from the revohit'-m up to annexation, tlie death of the parties immediately after the contract, and the loss and destruction of papers and muiiimeuts of title, it would not liave been in furtherance of justice for the rights of the parties to have been investigated sooner.
   IlKMi’uiihtj. Cu. J.

The first ground for reversal is, in substance, but a general demurrer to the sufficiency of (he plaintiff’s petition. As a general rule, such exception, where the defendant appears, should be set up' in the court below. Tiie verdict or decree cures all defects, imperfections or omissions in the petition or statement of the. cause, of action, whether of substance or of form, if the issues joined be such as require proof of the facts imperfectly stated or omitted, though it will not cure or aid a statement of a defective title or cause of action. (L Chiriy, p. 712, 722.) The defendants in this case appeared and pleaded to tlie facts, but did not demur or state in their pleadings tiie objections now urged in support of tliii assignment of error.

The appellants in their argument on tins ground contend that tiie demand is stale and is barred by the statute oE limitations and by tlie lapse of time. Tlie defense of the statute should have been set up by demurrer or by plea. In equity tlie statute maybe taken advantage of by cither. (Daniel's Chan. Prae., vol. 1, ]). 02:2.) But there does not seem to he any positive rule as to the mode in pleading- by which tlie laches of another, or the lapse of time independent of I he statule, may be set up as a defense. It cannot, according- to the cases, be reached by demurrer. (3 Bro. C. G„ p. G4G; 1 Dan. Chan. Prae., p. 624.) Where tiie suit is for a money demand the defense comes in on a plea of payment, oil the ground that such facts raise a presumption of payment. (3 Phillips, p. 304; Í0 Wend. R., 443.)

In suits for specific performance, and others where tlie plea of payment is inadmissible, it is believed that tlie practice is to submit to tlie court whether, under the circumstances and tlie great lapse of time, the defendant ought to be compelled to perform his contract, or whether the relief prayed in the petition should he granted. (5 Ves. R., 720; 4 Bro. C. C., 214; Id., 440.) Under our system of pleadings the defendant should in all cases plead the laches and lapse of lime, in his defense, provided the plaintiff' lias not in tlie petition alleged some grounds in explanation of his apparent laches or delay. If so, the defendant would be relieved from the, necessity of setting- up tlie mere lapse of time. The pleadings must show that such defense is relied upon, otherwise it must lie regarded as waived. 1-Iad the defense now set up been urged below, it would liave deserved very serious consideration. The contract sought to be enforced was of twelve years’ standing. Time bad strewn its darkening shadows over the transaction; and he who requires the court to grope through tiie obscurities of the past for the protection o£ his rights must show reasonable diligence, and that it has not been through his ladies or neglect that the matter has now become involved in mystery and ambiguity.

But we will not proceed with the discussion of a point not presented for consideration. Had such defense been urged below there is a bare possibility that it might have been explained by equitable circumstances. The proof must have boeii of a potent character to have excused so long a delay, but if, may have been adduced, and as there is no statement of facts we must presume that the proof, if necessary, was made. It was agreed that the statement, in the handwriting of the judge, should be transmitted, but no such document lias been certitied.

It is further contended by the appellants that the appellee is precluded, by the former adjudication between the representative of the estate of DeWitt and J. D. Clements, from setting np the rights of Miller’s estate to the land in controversy; that Clements was, at the rendition of the said judgment, administrator of Miller; and that tiie judgment against him is binding on the appellee as the successor in the administration. This position would be sound had the former judgment been against Clements iu his representative and not his individual capacity, and had‘it been of a character to conclude the rights of Miller’s estate to the matter in litigation. But Clements was sued iu his-individual right and not as administrator. He was sued as the holder of the legal title, and with the view of divesting him and vesting the title, in the estate of Green De Witt. It is true that he was the administrator of Miller and that he believed Green De Witt had, in tiie lifetime of Miller, sold the land to him. But he was not sued as such administrator, nor were the rights of Miller’s estate in the land necessarily involved in the controversy. The conveyance of the legal title to Green I)e Witt or his heirs did not affect the right of the vendee of .Do Witt to the land. The legal title was transferred to De Witt, but De Witt’s obligation to convey the land to his vendee still remained, and the completion of title in De Witt’s heirs only enabled them to make a perfect conveyance to Miller’s heirs in execution of the covenants of their ancestor. At the most the judgment in tiie former suit was but notice that the heirs of De Witt were claiming the land adversely to those of Miller* The record shows that though tiie parties and the court were apprised of the claim of Miller’s estate by the pleadings of Clements and by bis attempt to liave the heirs of Miller made parties, yet they were not permitted to intervene, nor was their claim or that of the estate adjudicated. The reverse was the fact. It was expressly adjudged that the decree should be without prejudice to the rights of the heirs of Miller, if any they liad.

This reservation would have been negatory had the estate of Miller been represented in that suit by the administrator. But it was not represented and was no party iu the suit, and tiie reservation is but the declaration of the legal principle that a judgment is binding only on the parties and their privies in the proceeding and not upon others. 2sTo doubt, as a vigilant guardian of his trust, the ádmininistrator should as such have attempted to intervene, in order to prevent a multiplicity of litigation, and to secure the legal title .at once to tiie estate of Miller, without passing through the circuitous channel of au intermediate owner. lie might have been liable had the estate suffered from his negligence, but he would not have been nor was bis succession precluded from the institution of a suit to compel the vendor who had'thus secured the legal title to make the conveyance to the vendee.

It is further urged by the appellants that the appellee, as an administrator de bonis non, could not set up the fraud of the former administrator, Clements, so as to avoid the judgment in the former suit. Had the former decree been against Clements as administrator and conclusive, against Miller’s estate, and had it been fraudulently obtained, in collusion with the then plaintiff, yet I apprehend the land would still be assets of the estate of Miller, and as such pass info the hands of the administrator do, bonis non, and that he might, on showing of tlie fraud, have the judgment set aside and the land conveyed to himself. Such is the rule when» assets hive been fraudulently alienated by an adniinisfralor in collusion with the vendee, and the fact that a judgment has intervened, if obtained through fraud, cannot affect the principle or vary the rights of parlies. (1 Williams on Executors, p. 7811, and cases cited.)

Note 40. — MrClellan v. The State, 22 T., 403; Williams v. Warnell, 28 T., 610; Stansbury v. Nichols,30 T.,145. When there is no ba«is in the pleadings for averdiefcin favor of the plaintiff the judgment will be reversed. (Black v, Calloway, 30 T., 232; Elliott y. Wiggins, 16 T., 596; Locke v. Hiding, 24 T., 312.)

Note 41. — Mitchell v. Sheppard, 16 T., 484; Stramler v. Coe, 15 T., 211; Holman v. Criswell, 15 T., 394; De Cordova -y. Smith, ante 129.

Note 42. — Giddings v. Steele, 28 T., 732.

That < ’. (.!. lie Wilt purchased the land at public sale cannot, under the facts, operate to the prejudice of tlie claims of the succession of Miller. The decree under which title was made to the estate of De Wilt reserved the rights of Miller’s heirs, and he was'thus not ¡tied of the probable existence of such rights; and, further, he purchased only such tilicas the deceased. Do Witt, had in-the land; and he must, consequently, yield to the. paramount title of Miller, the veudee of De Witt. Upon considering the matters in the record, there being no statement of facts and no sufficient ground to impugn tlie decree, we are •of opinion that the same be affirmed, ami it is so ordered.

Judgment affirmed.  