This is an action of trespass to try title, commenced by the appellee in the District Court of Harris county, at the Fall term for the year 1860.
The plaintiff appears, from his pleadings, to count upon a legal title, but as the cause progresses it becomes rather a conflict of equities, between plaintiff and defendant.
■In those States where law and equity are blended, and the remedy in each class of cases is sought in the same tribunals, it has been held that an equitable title may support the action of ejectment. (Miller v. Alexander, 8 Tex., 43.)
We will have necessarily to look to the facts to determine the legal status of the parties to the suit.
It appears that in the month of September, 1852, Yiser sold a boat to D. W. C. Harris, in part or in whole consideration for *155which he received a conveyance of lots numbers one to twelve, in block seventeen, in the city of Houston. Harris appears to have conveyed the lots as the attorney in fact of his brother, J. B. Harris. The consideration named in the deed was $220, and the name of the-grantee was not filled in. Yiser being at the time indebted to the firm of Groesbeeck, Rice & Go., went to them with the deed he had taken from Harris, and proposed giving them the lots for the same consideration he had paid; but the offer was declined, and he was told that the deed was defective, and that he had better get his deed direct from J. B. Harris. It appears that for want of time he did not' do this, but got D. W. O. Harris to wait upon Groesbeeck, Rice Co., who explained the deed, and told them that Yiser was authorized by him to fill the blank in the deed with any name he desired. Groesbeeck & Rice declining to buy the property, Yiser left the deed with them, telling them that they could have the property themselves, or they might sell it to any other party for the sum of $220.
Nothing more is heard of the matter for a little more than two years. In December, 1854, Groesbeeck, Rice & Go. concluded to take the property themselves, and accordingly filled the blank in the deed with the name of. William M. Rice. Of this they gave no 'notice to Yiser, nor did they credit him with anything upon their books for some three years after they had thus filled up and recorded the deed. In 1856, Yiser came to Houston and inquired about the matter of Rice, who, from some cause or other, gave him but little satisfaction about it further than to say, that he did not know what had become of the deed, but when Mr. Groesbeeck returned (who appears to. have been absent,) it would all be right. Yiser found the deed on record, and appears to have been displeased with the transaction. Rice afterward, in December, 1862, procured a deed for the same property, from John B. Harris. This deed could only operate in furtherance and assurance of the title intended to be conveyed by his brother, D. W. C. Harris, and could only operate as an acknowledgment of his power to convey.
*156In McCowan v. Wheeler, 20 Texas, 372, the court decide that a deed left blank as to the name of the grantee, and filled up after the acknowledgment, whilst it would not operate as a deed, would be admissible evidence of a contract of sale, and would take the case out of the statute of frauds in an action for specific performance by the grantee against his grantor. The deed left then with Groesbeeck, Rice & Co. did not convey the legal title to Rice, and could only have been good as evidence of a contract of sale as between Harris and Yiser. Nor could the subsequent deed from J. B. Harris convey any title, for the very object of the deed was to confirm the sale made by his brother to Yiser, to whom a gocd equitable title had passed by it; and any attempt on the part of J. B. Harris to convey a title to one claiming adversely to Yiser, has very much the appearance of an attempt at fraud, and would not be allowed to affect the interest of Yiser in this suit. which was then pending.
The evidence appears to lead to the conclusion that an offer of sale was made in September, 1852, by Yiser to Groesbeeck, Rice ■& Co., which they then declined accepting; that Yiser then made them his agents to sell the land for him to any third party who would give the sum of $>220 for it; or if they saw proper they might take it at the same price and credit his account with that sum.
It may be well here to notice that Groesbeeck, Rice & Co. could not be agents to sell the property to themselves, nor is their claim that the deed left with them would operate as a contract in writing to take the case out of the statute of frauds, as between them and Yiser, supported by any principle of law or equity; nor does the claim that they held the deed as a mortgage to secure their debt stand upon any better footing. If a mortgage, and good as such, they have their remedy upon it, but not in this action of trespass to try title.
■ 'In view of all the facts, as we derive them from the record, *157Bice now stands in the relation of a trustee of the legal title, while Yiser holds a title good in equity. On the supposition that Yiser left it optional with Groesbeeck, Rice & Oo. to become the purchasers of the property, no time being fixed by the parties during which the option should continue, the law says they must make their choice within a reasonable time, and it certainly ought not to. be contended that this option continued over two years.
The conduct of Rice furnishes fair presumption that he did not so understand the matter. He gave Yiser no notice of his taking the property at his offer, and four years afterward appears to have forgotten that he had taken the deed to himself, and entered no' credit on Yiser’s account for over three years after he had taken the deed and recorded it to himself; and a year or more after Yiser appears to have repudiated the transaction.
Having thus declared what we conceive to be the law of this ease, we reverse the judgment, and remand the case for inquiry of damages and to be tried in accordance with the view of the law which we have presented herein.
Reversed and remanded.