*95MOTION FOR REHEARING OVERRULED.
COX, J.On the oral argument upon the motion for rehearing, it is earnestly insisted that Moore, from whom defendant purchased the property, was in possession at the time and that defendant is an innocent purchaser and should he protected. There are two things in this case which cut out this defense. First. There is no evidence-that Moore was in possession of the property. A man hy the name of Killigrew was in the physical possession as watchman and all Moore did was to invoice the property and when he sold it he gave an order on Killigrew which Killigrew honored and it was he, and not Moore, that turned the property over to defendant at the time of the sale. Second. McNeal, who purchased the property from John Moore for defendant, testified that he ashed Moore whose property it was and if he had authority to sell it; also that he ashed one Charles Moore if John Moore had authority to sell it; also that when he bought the property he was in doubt as to John Moore’s authority to sell and as John Moore was not financially responsible, he made the first check that was given, payable to Charles Moore who was responsible in order to protect himself. This testimony settles the question of innocent purchaser against defendant’s contention. McNeal knew that Moore only claimed to be an agent and it was his duty to inquire and ascertain Moore’s authority to deal with the property, and in making the inquiry it was his duty to go to the parties who owned or controlled it for information and not depend on information received from Moore or outside parties.
Defendant also contends that if the judgment is to be reversed the cause should be remanded for a new trial for the reason that plaintiff must recover upon the strength of his own title and that the burden of proof of ownership of the property was upon *96him and since the trial court or jury is charged with the duty of weighing the testimony, they might disbelieve plaintiff’s witnesses even though they were not contradicted and if they should, then the finding should be for defendant and for that reason this court can not direct a judgment. In many cases this .position would be correct but the rule sought to be invoked is not applicable to this ease. The plaintiff in his petition alleged ownership and the defendant in its answer not only filed a general denial but asserted title’ as well and demanded the return of the property. On the trial, plaintiff introduced Royce who testified that he had a power of attorney from plaintiff authorizing him to dispose of the property and that he did not sell to defendant nor authorize any one else to sell to it. On cross-examination defendant brought out the fact that Royce had authorized Campbell and Durnell to sell the property. This fact plaintiff did not seek to controvert and afterward introduced the contract executed between Royce and Campbell and Durnell, thus conceding that Campbell and Durnell had authority to sell. Defendant then directed its efforts' to trying to prove that Campbell and Durnell had authorized Moore to sell, and the only issues tried in the court below were whether, a.s a matter of fact, Campbell and Durnell did authorize Moore to sell and whether under the facts they had the power to grant such authority to Moore. The evidence on part of defendant was directed to those questions and the instructions given at defendant’s request were also confined to those questions. Defendant, therefore, took the position at the trial that it had acquired plaintiff’s title through its purchase from Moore. Having taken that position at the trial it must stand upon it here, and the burden was upon it to show Moore’s authority to sell. Having assumed this position at the trial instead of relying upon its general denial or asserting an independent title, there *97was no evidence on the question of ownership to weigh except the evidence by which defendant sought to show that by a purchase from Moore it had acquired, plaintiff’s title. By taking this position it, in effect, conceded that ownership was. in plaintiff if its purchase from Moore did not transfer that ownership to defendant. Under this condition of the case, the rule now sought to be invoked for the purpose of securing an order to remand the case for new trial does not apply. Motion for rehearing overruled.
All concur.