¶1On Motion for Rehearing.
¶2Careful consideration has been given to the able motion for rehearing filed herein by the appellees. However, we still adhere to the views expressed in the original opinion. In the light of the motion it is thought proper to clarify the opinion somewhat.
¶3The evidence was sufficient to raise the theory that Mrs. Newman after the death of her husband continued the alleged adverse possession for the benefit of herself and for the benefit of her children. The discussion appearing in the opinion as to the nature of the title acquired by a surviving wife or husband continuing an uncompleted adverse possession was for the purpose of illustrating the nature of the *648right of an estate acquired by the survivor. To the proper determination of this case it is unnecessary to determine whether the interest alleged to have’ been acquired be considered as community property or otherwise.
¶4We will further briefly state our reasons for the disposition made of this case.
¶5Suppose one should acquire by inheritance an option to purchase land. He ■ exercises the option and acquires title to the land. The land is not inherited. Could it be said, in an action involving the title so acquired, that the judgment therein rendered would be for or against him as an heir of his ancestor? In case of a privity of estate arising by descent from a prior adverse possessor and a subsequent one, a rather tenuous option is acquired to seek to obtain the title to the land through a continuation of the adverse possession. As heir there is no obligation to continue same; there is no legal right to have the owner of the title refrain from ending such peaceable possession. If the adverse possession is ripened into title by the heir of the prior possessor, such title is by purchase and not by inheritance. In an action involving the validity of the title so acquired the holder neither relies upon the title acquired by descent nor is he affected by the judgment rendered as an heir.
¶6We might further state that in arriving at our conclusion we were in no wise influenced by the fact that plaintiffs’ petition did not specifically allege that they were heirs of S. Newman. For a party to rely on a title cast by descent, we do not deem it necessary that there be an averment that he sues as heir — this especially is true where the action is in trespass to try title.
¶7The case of Dominguez v. Garcia, Tex.Civ.App., 36 S.W.2d 299, affirmed by Commission of Appeals, 53 S.W.2d 459, was not mentioned in the original opinion. In that case Garcia relied upon a limitation title perfected by the possession of his mother. We infer that title was alleged to be perfected before her death and passed to Garcia by descent. It was there held that he was incompetent to testify as to transactions as to the adverse possession of his mother. It was held that the testimony was incompetent. In the decision of the Commission of Appeals the correctness of this ruling is in no way questioned. In fact, we think, as the judgment of the Court of Appeals sending the case back for another trial was affirmed, that there was an implied approval of the ruling on the evidence.
¶8The distinction is the same between the instant case and that case; as between the instant case and the case of Power v. Jones, Tex.Civ.App., 135 S.W.2d 1054, which is discussed in the original opinion.
¶9Appellees claim in part at least as the heirs of their mother. In fact, if title they have, it is through her. The transaction sought to be proved was not with her. There can be little question but that as to the interest claimed through their mother the testimony was admissible. King v. Morris, Tex.Com.App., 1 S.W.2d 605; Theophilakos v. Costello, Tex.Civ.App., 54 S.W.2d 203; Armstrong et ux. v. Marshall, Tex.Civ.App., 146 S.W.2d 250.
¶10Furthermore, we believe that appellees’ privity of possession was through their mother, in part by her voluntary act in claiming for them after the death of the father and in part by descent.
¶11The motion for rehearing is overruled.