¶1Appellees, who are the heirs of Richard Best, deceased, brought this suit in the form of an action of trespass to try title to recover a survey of six hundred and forty acres of land, patented in the year 1858 to the heirs and legal representatives of said Richard Best.
¶2It appears from the record that a conditional certificate was issued to Richard Best in the year 1838. Best died in 1839, and administration was opened upon his estate in Galveston County in the year that he died.
¶3An unconditional certificate was issued in 1848 to the heirs and legal representatives of Richard Best.
¶4The administration was closed in 1841, and there is no evidence that the land certificate was sold or conveyed by the administrator.
¶5In the year 1855 one Robert Heal conveyed the certificate to one J. A. Sherburne, who, in the year 1857, located it on the land in controversy. Sherburne asserted title to the land for many years, as was known to the heirs of Best as early as the year 1860.
¶6In the year 1882 one J. P. Morris, without consideration, conveyed the land to his brother E. W. Morris by a deed which was recorded on the day it was made.
¶7The land was enclosed on all sides by E. W. Morris and persons owning adjoining lands, the fences being on the lines of the adjoining lands. From the date of his purchase in January, 1882, until he conveyed it to appellant, in 1884, E. W. Morris was in possession of the land, and paid all taxes against it. The evidence shows that his possession was not in fact hostile to the claim of the true owners, but it does not show that appellant was aware when he purchased that it was held in subordination to the title of the true owners.
¶8The appellant, desiring to purchase the title, and having tried without success to discover the heirs of Richard Best, in the year 1884 purchased the land for an inadequate consideration from E. W. Morris, who made to him a quit claim deed for it. He took possession under this deed, and held it adversely, paying all taxes against it until this suit was instituted on the 27th day of December, 1887.
¶9In the year 1885 appellant was advised by an attorney with whom he consulted with regard to the title, that it was in the heirs of Sherburne, by whom the certificate had been located. The attorney who gave him this *571advice represented to him. that he was the attorney of the said Sherburne heirs, and upon his recommendation appellant purchased and received conveyances of the land from said heirs, paying for it much less than its real value. Subsequent to the last conveyances to him, appellant put upon the land permanent improvements of the value of two thousand one hundred and sixty-five dollars, for which the court gave him judgment, and rendered judgment against him in favor of plaintiffs for the land.
¶10We deem it unnecessary to mention in detail appellant's assignments of error. The conditional certificate having been issued to Bichard Best, and both the unconditional certificate and the patent having been issued to his heirs, and the record showing no sale or conveyance by Best during his life, or by his administrator or his heirs subsequent to his death, of either the certificate or the land, the title necessarily remains in his heirs unless it has been divested by adverse possession under the statute of limitations.
¶11The evidence is, we think, insufficient to show title by limitation. Na question is made about the sufficiency of the evidence to establish that plaintiffs are the heirs of Bichard Best.
¶12Appellees assign error, complaining of so much of the decree as allows appellant compensation for his improvements.
¶13Without repeating the evidence or undertaking to discuss it with regard to this issue, it is proper to say that while the record fails to show a sale of the land certificate by the administrator of Bichard Best, one ítem of the final report of the administrator is a charge against himself and in favor of the estate of an amount of money “received for head-right." This report was filed in 1841.
¶14Seventeen years afterwards the certificate was found in the possession of Sherburne, who claimed to be its owner and caused the land to be located. For more than forty years plaintiffs forbore to assert their claim in a way to make it known. Possession of the land had been held long enough to give title by limitation if it had been of a sufficiently pronounced adverse character, about which want it is not clear that appellant was not misinformed or misled. Not to mention other facts relating to the issue, we do not think a case is presented to us justifying a reversal of the finding of the district judge upon this issue.
¶15The judgment is affirmed.
¶16Affirmed.
¶17Delivered January 14, 1890.