ON MOTION FOR REHEARING.
ELLISON, J.Plaintiff deeded to Anderson & Oo. his twenty acres subject to an incumbrance of $1,700, and defendant deeded to Anderson & Co. his sixty-four acres subject to an incumbrance of $2,200, said Anderson & Co. assuming and agreeing to discharge these incumbrances. These deeds were non-effective (Arthur v. Weston, 22 Mo. 383; Douthitt v. Stinson, 63 Mo. 268), at least so far as the legal title was con*457cerned, and the Andersons realizing that they had made a bad •trade and complaining to defendant about it, they offered to rescind and tendered quitclaim deeds which were refused. Yet afterwards a settlement or compromise was had to which we refer in the original opinion, whereby the matters between plaintiff and defendant on the one part and the Andersons on the other part were adjusted. In this settlement it is not made to appear what became of the land conveyed by plaintiff. Certain it is that the Andersons never regarded themselves as the owners. They never took possession or claimed it, or exercised ownership over it; on *the contrary, they disclaimed in testimony any interest in it. They never attempted to pay the incumbrance on it. We regard the face of the record, taken as a whole, as establishing that the land was regarded all ’round, after the settlement, as belonging to plaintiff, as if no Anderson trade had taken place.
But plaintiff and defendant adjusted plaintiff’s share of the profit in the Anderson trade and fixed it at $500, which defendant paid him by deeding a tract of land to him and he, defendant, taking plaintiff’s interest in the goods.
Defendant argues that plaintiff having sold the land to Andersons for the goods and then having sold his interest in the goods to defendant, he can not complain of the loss of the twenty acres by reason of defendant’s failure to pay off the Speck mortgage. If defendant’s view of the facts of the case and his conclusions therefrom were all admitted, it would leave the twenty acres of land belonging to the Andersons until sold under the Speck mortgage which plaintiff warranted against, and would therefore leave plaintiff liable on his warranty to the Andersons and therefore injured by defendant’s failure to keep his contract. We do not, of course, mean to say that such is the injury plaintiff has sustained. We only refer to it in answer to the assertion that the sale to Andersons by plaintiff *458relieved defendant of all consequences of his breach of contract.
Aside from the considerations mentioned in the original' opinion in this cause, a prominent feature only mentioned in that opinion may be repeated more at large. The petition charges fraud and breach of trust on defendant in direct terms. That he fraudulently “so manipulated said tract of land as to have it conveyed to himself” and that he received large profit and gain by such conduct. In all the complication of evidence adduced at the trial, defendant never offered explanation or volunteered his testimony. In circumstances of that nature the presumption of the truth of plaintiff’s theory will obtain. Conn. Mut. Ins. Co. v. Smith, 117 Mo. 261, 294; Cass Co. v. Green, 66 Mo. 512; Leeper v. Bates, 85 Mo. 224. This presumption forces itself into belief when considered in connection with plaintiff’s testimony, that after all the matters connected with the transaction had transpired, defendant frequently promised to settle with him for his conduct; thus recognizing a liability to plaintiff, and showing how he interpreted his engagements and the effect of his undertaking. By failing to testify, defendant failed to contradict plaintiff, and leaves the statement to be accepted by the trier of the facts.
It is complained that the valuation of the land is placed too high and it is suggested that the court ought not to state the value of the twelve acres sold by defendant was $1,300. But what else can we do within the rules of evidence? It was agreed at the trial that defendant’s deeds conveying the twelve acres stated considerations aggregating that sum. No evi-' deuce was offered to the contrary, notwithstanding the petition charges that “the facts concerning the sales lie peculiarly within the knowledge of defendant.” We are thus compelled to consider that defendant received for the different tracts making up the.twelve acres a sum aggregating $1,300.
Our conclusion on the whole case is that no reason exists for a rehearing and the motion will be overruled.
All concur.