This suit was brought by appellant, Mrs. Robinson, joined by her husband, against appellee, the Monning Dry Goods Company, in trespass to try title to certain lots in the town of Tahoka, in Lynn county. The appellant appeals from a judgment for the defendant in said cause.
Both parties claim under Jack Alley, and the appellee in addition claims that, if he has not acquired title from Jack Alley, then the title to said property is still outstanding in him, and the appellant as plaintiff in the trespass to try title suit is not entitled to recover. The claims of said parties are based on the following facts: On June 1, 1910, Jack Alley conveyed the property to T. M. Bartley, retaining a vendor’s lien to secure the payment of four notes for $300 each, executed by Bartley. On December 20, 1912, said Bartley reconveyed the premises to Jack Alley, the deed reciting the assumption by the said Alley of payment of the above-described notes. This deed was never recorded, and was lost. On March 16, 1917, the said Bartley, at the request of the said Alley and upon representations hy him that the deed from Bartley to Alley had never been recorded and that he was. in doubt as to whether such deed had been given, conveyed the property to Mrs. Robinson, Alley’s stepdaughter, upon a recited consideration of $10 and other valuable considerations, including the assumption of the payment of the vendor’s lien notes executed by Bartley, already referred to. On March 16, 1917, Alley executed a release of said vendor’s lien, reciting the payment of said notes by the said Mrs. Robinson. Bartley paid no consideration for the conveyance except the execution and delivery of the notes recited in the .deed, and received nothing himself in the transaction; “the papers were executed [by him] as an accommodation to Alley.” Alley occupied the premises for some time after the conveyance to Bartley, and after he vacated 'they were rented and the rents collected by Mrs. Robinson, who paid them to Alley, until the conveyance of the property to her, and who thereafter retained the rents herself. The Monning Dry Goods Company, on March 9, 1911, secured judgment by default in the county court of Tarrant county *536 against Jack Alley individually and Jack Alley Company, a corporation. This judgment recited that the defendant, though duly cited, came not, etc. Following this recitation the court found that “defendant, Jack Alley Company, a corporation, and Jack Alley as an individual, jointly and severally, are justly indebted to plaintiff,” and then adjudged that the plaintiff ‘‘do have and recover of and from defendant, Jack Alley Company, a corporation and Jack Alley as an individual, jointly and severally its judgment,” etc. The citation in the case did not show service on the Jack Alley Company. An alias execution directed to Lynn county was issued on this judgment on April 18, 1917, returnable in 90 days. This execution was levied on the lots in question, on the 24th day of Hay, and the property advertised for sale on the 3d day of July, 1917. On the 3d day of July, 1917, and before the sale was made, the sheriff was restrained from selling said property by a writ of injunction issued out of the district court of Lynn county, in cause No. 312, wherein Mrs. Robinson was plaintiff and the sheriff was defendant. The defendant in said cause answered by a plea in 'abatement that Mrs. Robinson was not joined in said suit by her husband, and also by general exception and general denial. On September 5, 1917, the court sustained said plea in abatement, and dismissed said cause and dissolved' said temporary injunction. This judgment also contained the following, after reciting the issuance of the temporary injunction restraining the sale of said property on the 3d day of July:
“It is therefore ordered by the court that the clerk of this court issue a writ of venditioni exponas, commanding him, the said F. E. Red-wine, to proceed to. sell the above-described property as under execution to satisfy said judgment (the judgment rendered in the county court of Tarrant county) interest and costs, as well as the costs 'incurred in this cause.”
The property was thereafter sold by ike sheriff of Lynn county on the 6th day of November, 1917, and was bought in by and deeded 'to the Monning Dry Goods Company. The return of the sheriff on the execution from the county court of Tarrant county set out all these facts, reciting that the ven-ditioni exponas had been issued out of the district court of Lynn county, and had been returned to said court, though the venditioni exponas and return thereon were not offered in evidence, the only evidence as to the issuance of the venditioni exponas and return thereof being the sheriff’s return on the execution from the county court of Tarrant county, reciting the facts as wexhave stated them.
“The destruction or loss of a deed or its redelivery to the grantor does not divest legal title of the gTantee or revest it in the grantor.” Galbraith v. Templeton,20 Tex. 48 ; Van Hook v. Simmons,25 Tex. Supp. 324 ,78 Am. Dec. 573 ; Sanborn v. Murphy,86 Tex. 437 ,25 S. W. 612 ; Stanley v. Epperson,45 Tex. 654 ; Dykis v. Hart,2 Tex. Civ. App. 354 ,21 S. W. 299 .
But these decisions also recognize that:
“There are exceptions to this rule, even at common law, and it may be defeated by considerations or claims of equity.”
The cases of Stanley v. Epperson,
“Are there any ‘considerations or claims of equity’ in this case that will take it out of the general rule?”
In the case of Stanley v. Epperson, supra, where Stanley conveyed the property to Henderson, who sold to Epperson, for a valuable consideration, but instead of executing his own deed to Epperson, with the consent of all parties, the grantee’s name in the Stanley deed was erased and the name of Epperson written therein, and the said Ep-person sued Stanley for the land, the court held:
“While it is true the altered deed of itself cannot be held to be either the deed of Stanley and wife to Epperson, or a deed from Henderson to him, yet the facts-show that it'would operate as a fraud upon appellee to permit Henderson, in whom the title was vested, to deny that it has been thereby conveyed to appellee.’ He is therefore estopped from doing so. Commonwealth v. Dudley,10 Mass. 403 . * * * And certainly a stranger cannot make for him, or in his name, a defense or claim which he has not made, and which he would not be permitted to make if he was a party to the suit.”
The Massachusetts case above cited is very similar in its facts to the case at bar. In the present case Mrs. Robinson, in the conveyance to her, assumed to pay the four notes for $300 each, payable to Alley, and the release from Alley recites that she paid these notes. This is prima facie evidence of this fact, and there was no evidence to the contrary. Under such circumstances Alley would be, we think, estopped from setting up the deed from Bartley to him, which was represented as being lost and treated by the parties as never having existed. So that, even if the execution sale had been regular, the purchaser thereat could get no better title than the said Alley had at the time of the levy, which was after the conveyance to Mrs. Robinson. Under this state of facts we think that the judgment should have been for the plaintiff. As the record suggests that the facts as to the equities o-f the appellant may not have been fully developed, we will not render the judgment, but will remand the case for a new trial.
Reversed and remanded.
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