The opinion
On Motion for Rehearing.
Upon a further examination of the record, we find that Bessie Lee Griffin (née Morgan) married during the month of August, 1927, and when she married she was a minor. Hence, while her alleged cause of action, if any, to set aside the judgments in causes Nos. 7494-B and 7473-B accrued some five years prior to the date of the. filing of her present suit, yet limitation did not begin to run until her marriage, which was only two years, before the institution of her present suit 'to set aside those former judgments. Therefore, the conclusion reached in our opinion on original, hearing sustaining the defense of four years’ limitation (Rev. St. 1925, art. 5529) as' against her suit was erroneous, and the 'same is hereby withdrawn. '
But we adhere to our former conclusion that the defense of estoppel as against BeSsie Lee Griffin was conclusively established by her act in receiving from her former guardian on final settlement of the guardianship after her marriage, several thousand dollars collected by him as royalties from the lease which was assailed by her; and • further receipts of royalties by her after • her marriage in monthly installments covering more than a year, amounting to more than $1,000, since such acts conclusively bound her to a ratification of the lease and of the judicial proceedings which culminated in its execution. The contention made in her motion for rehearing that estoppel could not be successfully invoked against her by reason of her coverture is without merit, as is well established by the decisions of this state. Crayton v. Munger, 9 Tex. 285 ; Guaranty Bond Bank v. Kelley (Tex. Com. App.) 13 S.W.(2d) 69 ; Speer on Marital Rights, par. 155; Simkins v. Searcy, 10 Tex. Civ. App. 406 , 32 S. W. 849 ; Bingham v. Barley, 55 Tex. 281 , 40 Am. Rep. 801 ; Daimwood v. Driscoll (Tex. Civ. App.) 151 S. W. 621 ; and other decisions therein noted.
In Lee O. Bearden’s motion for rehearing, complaint is made of our conclusion that he waived his right to set aside the judgment in cause No. .8025 in favor of his three children, as being void, by reason of his election to accept the judgment rendered restoring to him title theretofore decreed to those children, with a further recovery for all the oil royalties they had received from the lease held by .the Texas Company, and also a recovery from the Texas Company of the royalties accruing in the future under the same lease on the one-tenth interest in the land in controversy which was devised to him by his father A. L. Bearden; thus treating the former judgment as valid until restoration of title, with the profits therefrom, be made to him under the provisions of article 5541, Rev. Civ. Statutes of 1925, reading: “Any person absenting himself for seven years successively shall be presumed to be dead, unless proof be made that' he was alive within that time; but an estate recovered on such presumption, if in a subsequent action or suit the person presumed to be dead shall be proved to be living, shall be restored to him with the rents and profits of the estate with -legal interest during such time as he shall be deprived thereof.”
The judgment so rendered in his favor was in accord with the provisions of that statute. Nor have we been cited to any testimony in the record offered to prove the market value of the oil royalties collected by those children, in order to support a judgment for damages for the wrongful conversion alleged in Lee O. Bearden’s petition. And it was our conclusion that his alleged right to claim that the lease and the judgment in cause No. 7473-B under which it was executed was void, and to recover damages for conversion has been waived; in other words, that the doctrine of waiver, involving some of the elements of es-toppel, is applicable here, irrespective of whether or not the other parties have been misled to their injury. As said by the Supreme Court of Illinois in Trapp v. Off, 194 Ill. 287 , 62 N. E. 615 , 621: “Where a party accepts the benefit of a decree, he cannot aft-erwards prosecute error to reverse it. Such *465 acceptance operates as an estoppel, and may be treated as a release of errors.” Also, see Morgan r. Morgan, 171 Ark. 173 , 288 S. W. 979 ; Boulder & Weld County Ditch Co. v. Lower Boulder Ditch Co., 22 Colo. 115 , 43 P. 540 ; and other authorities to a like effect hereinafter noted.
It is true, as appears in our original opinion, that we did not pass upon the contention here made by the Texas Company, to the effect that Lee O. Bearden has waived his right to question the validity of its'lease and of the judgment in cause No. 7473-B by authority of which the lease was executed, by' reason of the fact, as shown in the record, that with his consent, the court entered a decree providing that the judgment against him in favor of his putative wife, Mrs. Jennie Estella Bearden, and her and his minor child, Myra Elizabeth Bearden, should be satisfied out of royalties hereafter to accrue on his one-tenth interest in the land in controversy under the lease held by the Texas Company, thus treating that lease and the judgment in cause No. 7473-B, under which it was executed, as valid and subsisting. That was one of the contentions we left undetermined, as we deemed the same unnecessary in view of other conclusions reached. However, in order to avoid the seeming inference from what is said in the motion for rehearing that we overruled that contention, we now sustain it, for the same reasons already expressed in discussing a like waiver noted above.
In Texas Pacific Coal & Oil Co. v. Kirtley (Tex. Civ. App.) 288 S. W. 619 , it is. pointed out that it is not necessary, in order for one to successfully invoke the doctrine of ratification of an unauthorized act or the rule of election between two remedies, to show prejudice to the complaining party. As said in Morgan v. Morgan, 171 Ark. 173 , 283 S. W. 979, 980 , “One cannot accept and derive a benefit from a decree without necessarily admitting its legality.” Many other decisions to a like effect might be cited, such as Arthur v. Israel, 15 Colo. 147 , 25 P. 81 , 10 L. R. A. 693, 22 Am. St. Rep. 381 ; Trapp v. Off, 194 Ill. 287 , 62 N. E. 615 ; Creamer v. Holbrook, 99 Ala. 52 , 11 So. 830 ; Warner v. Hill, 153 Ga. 510 , 112 S. E. 478 ; Sage v. Finney, 156 Mo. App. 30 , 135 S. W. 996 ; Ashley v. Riser, 26 La. Ann. 711 ; Matlow v. Cox, 25 Tex. 578 ; Lowe v. Johnson (Tex. Civ. App.) 259 S. W. 1004 .
The general rule that a plea of estop-pel cannot be sustained in the absence of a showing that the party invoking it has been misled to his injury, which is discussed in many authorities cited in briefs of appellants, such as Gunn v. Mahaska County, 155 Iowa, 527 , 136 N. W. 929 ; McKain v. Mullen, 29 L. R. A. (N. S.) 30; 21 C. J. 1207, 1208; Bannon v. Sewer Pipe Co., 136 Ky. 556 , 119 S. W. 1170, 1173 , 124 S. W. 843 , is not applicable- here. .The controlling principle is that of waiver, which involves some of the elements of estoppel and is often so designated, and which, with respect to the issues of waiver discussed above,'involves also the doctrine of election between two inconsistent remedies; and it is not necessary that the party invoking it must show that he has been misled to his injury by reliance upon the act of the other party. 40 Cyc. p. 255 et seq.; 20 C. J. pp. 4 to 40.
The decision of the Court of Civil Appeals of Eastland in Damron v. Rankin, 34 S.W. (2d) 360 , is stressed by appellants to support their contention that the appointment of a guardian of Mrs. Annie E. Bearden, an insane, in the absence of a preliminary adjudication of insanity, was absolutely void, and subject to the attack made thereon by appellants; but the attack made in the case cited was by a separate suit instituted to set aside the appointment of a guardian for an insane person; and being a direct attack, the case is clearly distinguishable from the present suit. Appellants also cite the recent decision of the Amarillo' Court of Civil Appeals in Dial v. Martin, reported in 37 S.W. (2d) 166 . That was a suit instituted by Mrs. Gertrude Dial as executrix of the estate of J. C. Dial, deceased, and as guardian and next friend of her minor children to recover title to certain lands. In order to recover, it was necessary to annul a former consent decree of the probate court in the guardianship of the estate of the children, wherein Mrs. Dial had been appointed guardian of their estates, and which decree was later confirmed in another suit in the district court between the same parties. The Court of Civil Appeals sustained a collateral attack on the former judgment because no guardian ad litem was appointed to represent the minors, and further because the judgment was in violation of the terms of the will under which Mrs. Dial was acting as executor. It is therefore apparent that that case is distinguishable from the present suit.
In compliance with the request of appellants for additional findings, we will add to those recited in the original opinion the following;
The devise in favor of Mrs. Annie E. Bear-den by A. L. Bearden reads as follows: “All of my property of which I may die seized and possessed, with the exception of the livestock, shall be used, held and controlled by my wife, Annie E. Bearden, for her own use and profit for and during her life.”
The judgment in cause No. 7473-B does not recite that Mrs. Annie E. Bearden appeared in person, but does recite that she, a non compos mentis, appeared by R. E. Myers, guardian of her estate, and his attorneys; and also *466 by her attorneys; also by F. V. Hinson as her next friend and as her duly appointed guardian ad litem, and by his attorneys. •
In their pleadings in this case the appellants offered to do equity.
• There are other requested findings which we believe are either immaterial, or else sufficiently shown in our original opinion.
As indicated above, the motion for rehearing by Mrs. Bessie Lee Griffin as to the, defense of four years’ limitation urged against her suit is granted; but in all other respepts her motion for rehearing and the motions for rehearing by the other appellants, Lee 0. Bearden and E. B. Ritchie, guardian of the estate of Annie E. Bearden, and the motion for rehearing by Frank H. Wilson as guardian of the estate of Annie E. Bearden, are all overruled. Except as shown above, appellants’ motion for additional findings is likewise overruled.
The motion of appellants Lee O. Bearden and E. B. Ritchie, guardian of the estate of Annie E. Bearden, to retax costs is overruled.