On Rehearing. Opinion.
Appellee has moved to dismiss the appeal of the Gregory heirs on two grounds; (a) they failed to perfect their appeal by filing appeal bonds, but filed in lieu thereof affidavit of inability to give bond for costs, and under Art. 2092, Vernon’s Ann.Civ.St., designated by appel-lee as the City Practice Act, no provision is made for appeals on pauper’s affidavit; and (b) if in error in that contention, he makes the further point that the affidavits of inability to pay costs were not duly filed since they were filed more than 20 days after judgment overruling the motion for new trial, and it was not shown that said appellants were non-residents of Jefferson County. Both contentions are overruled. True the City Practice Act makes no specific provision for appeals by filing affidavit of inability to pay costs. But it is the clear intent of our statutes that any litigant desiring to appeal his case, and being unable to pay the costs, shall have the right to appeal his case by filing the required affidavit. The affidavit is in every respect in lieu of an appeal bond, and is subject to the same rules with respect to the time of filing.
The second point is also overruled. On the recitals in appellee’s petition filed by him as plaintiff in. the trial court, all of the appellants except two were non-residents of Jefferson County. These allegations invoke the provisions of Art. 2253, Vernon’s Ann.Civ.St., allowing the affidavits to be filed within 30 days after giving the notice of appeal.
Appellee urges another point against the right of the Gregory heirs to appeal,, to the effect that they failed to bring forward in their motion for new trial assignments of error against the judgment of the-lower court sufficient to support their propositions of error, as set forth in their brief. The judgment was rendered against the Gregory heirs on an instructed verdict.. The trial court instructed the jury that the Gregory heirs had no title and upon the-court’s finding of no title in them whatever title they may have was divested out of them and invested in the appellee by the-court’s judgment. .An instructed verdict,, to the same extent as a judgment sustaining a general demurrer, constitutes fundamental error. This was the holding of the-Commission of Appeals in the Harlington Land & Water Co. v. Houston Motor Co., Tex.Com.App., 209 S.W. 145; opinion approved by the Supreme Court. That holding has not been limited or qualified by any subsequent holding of our Supreme Court. See also Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270. The statement made by appellants in their brief is sufficient to invoke the doctrine announced, by the cited cases.
Having reached the conclusion that certain other holdings were erroneous, we-have withdrawn the original opinion ar.d. are- substituting this one in order to include a discussion of the following matters.
On original submission, we held: that the evidence raised an issue of fact for the jury that the deed from the Gregory heirs to Howth & O’Fiel was intended as a mortgage. On further study of the-evidence we are convinced that such holding was erroneous. The deed in question, was made in 1921 and on its face purports, to be an absolute conveyance of the land. At the time the deed was made there was considerable indebtedness against the land and the Gregorys, in fact, had only an equity in it, which equity was probably less, than $1,000. One of the Gregory boys, Ralph, was in jail under a felony charge- and C. W. Howth and D. E. O’Fiel, then-partners in the practice of law under the-firm name of Howth & O’Fiel, were employed to represent him, and did represent him. Miss Hazel Gregory, a sister of Ralph, and then only 18 years old, made-the trade with Mr. Howth for his firm to* represent Ralph, and secured the execu*261tion of the deed by the others who signed it. Appellants’ testimony was to the general effect that Mr. Howth demanded a fee of $1,000; that the Gregorys did not have the money but “put up the land” to Howth & O’Fiel to secure payment of the fee; some of the other Gregorys who signed the deed but who did not talk to Mr. Howth “understood” that the land was being put up or pledged as security for the fee. We think appellants’ testimony on the point, viewed as a whole in the light of attendant circumstances and disregarding the testimony offered by appellee to the effect that the deed was an outright conveyance, was not of that clear and satisfactory character required to raise the issue that a deed absolute on its face was in fact a mortgage. Appellants’ evidence left a number of important questions unanswered. If the conveyance was intended merely to secure the $1,000 debt, why was it not put in the form of a deed of trust? No apparant reason, such as a desire to evade the homestead law, existed for making the lien in the form of an absolute conveyance. When was the debt to be paid? What interest was it to bear? Why was no note executed to evidence it, as is the usual practice? Were the grantees simply to take and hold the land indefinitely until such time as the Gregorys saw fit to pay the debt? The whole testimony on the lien theory is nebulous, indefinite and uncertain, and wholly fails to negative the reasonable inference that any discussion about putting up the land as security, which might have occurred in the preliminary negotiations between Miss Gregory and Mr. Howth for the employment of Howth & O’Fiel, were not effectuated but were abandoned and the deed conveying the land executed instead. For 15 years, and until this suit was filed, there was no effort on the part of the Greg-orys to pay the debt, or any part of it. There is no evidence that any demand was ever made on them for its payment. They never rendered the land for taxes after 1921. Mr. Howth took immediate possession of the land, farmed it each year, paid off the indebtedness against it and exercised full and exclusive rights of ownership over it. In 1929, he built a tenant house on it at a cost of more than $600, which he paid. In the meantime he bought Mr. O’Fiel’s half interest, leased the land for oil, and conveyed portions of his royalty interest to others. Thus Mr. Howth dealt with the land as his own for some 15 years, and a good part of that time some of the Gregorys lived within a few miles of it and seemed to have raised no-question as to his title. Under these undisputed facts, no issue of mortgage was raised. Even if it be conceded that the Gregorys understood that the deed was a mere mortgage, such understanding on their part would not change the deed to a mortgage, in the absence of an understanding on the part of the grantees to accept it as such. “It takes two to make a trade.” Of course, if the Gregorys were induced to execute the deed under a mistake of fact and in the belief that it was a mortgage, such fact would be grounds to set it aside in a suit seasonably brought for the purpose. But no such issue is involved here. In this suit the attempt is simply to show that the deed is not what it purports on its face to be, but instead that by agreement of the parties it was and is a mortgage. We think the holdings of our courts deny the contention that the evidence as a whole was sufficient to raise that issue. Howard v. Zimpelman, Tex.Sup., 14 S.W. 59; Byrd-Frost, Inc. v. Elder, Tex.Civ.App., 92 S.W.2d 1134; Gazley v. Herring, Tex.Sup., 17 S.W. 17; Brewster v. Davis, 56 Tex. 478.
Certain of the Gregory heirs did not join in the deed of 1921 to Howth & O’Fiel. Of course as to those who did properly join in that conveyance the deed passed their title under the above holding. As to those of the Gregory heirs whose title was not passed by that deed, there is the question of limitation title under appellee’s plea of the ten year statute of limitation, Vernon’s Ann.Civ.St. art. 5510. Appellee’s evidence of continuous, adverse occupancy and use of the land in controversy was sufficient to establish title by limitation, as a matter of law, as to all of the Gregory heirs except Ike Gregory and Billie Gregory Bourgeois, who were under the disability of minority up until less than ten years before the filing of this suit. As to these two heirs, appellee acquired title neither by deed nor by limitation. He asserts title under the doctrine of rescission of the executory deed executed to their ancestor, T. W. Gregory, and under which they claim. Under the deed to their ancestor, as and when executed, the claim of all of the Gregory heirs was merely exe-cutory, the vendor owning the superior title and the right of rescission. But suit was instituted on these notes by the holders and the liens foreclosed. See Gregory v. *262Ward, 118 Tex. 526, 18 S.W.2d 1049. While under the holding in that case, the sale made under the district court judgment of foreclosure was insufficient to divest title, still it constituted an election of remedies by the then holder of the notes, and to whose rights Howth succeeded by purchase. By the foreclosure the right of rescission was lost under the doctrine of the election of remedies. Hill v. Preston, 119 Tex. 522, 34 S.W.2d 780. Under this holding, Ike Gregory and Billie Gregory Bourgeois still own their interest as heirs under their father, T. W. Gregory, subject to the payment of their prorata part of the original vendor’s lien notes and interest, which they tendered to appellee as a mortgagee in possession. This holding, ■of course, in no wise affects our holding ■as to appellee’s claim of limitation against ■the other Gregory heirs. Herndon v. Yount-Lee Oil Co., Tex.Civ.App., 119 S.W.2d 171, writ refused.
Appellants contend that appel-lee’s suit for damages is in the nature of a •suit for slander of title and that appellee wholly failed to make out a case entitling him to damages, either actual or exemplary, for the reason, among others, that there was neither allegation nor proof of any pending sale which was defeated with resulting loss to appellee by reason of the alleged slander. In slander of title cases it is generally held necessary to plead and prove a pending sale which was defeated by the slander as a prerequisite to recovery. 37 C.J. 131, 134; 27 Tex.Jur. 791; Houston Chronicle Publishing Co. v. Martin, Tex.Civ.App., 5 S.W.2d 170. But that rule does not deny recovery of damages in this case. As we construe the record, this is not an ordinary slander of title case, as for instance where one occupying no fiduciary relationship to another wrongfully and maliciously asserts against him an apparent but groundless claim of title and thereby defeats a pending sale. In this case, under the undisputed facts, appellant Shell Petroleum - Corporation took an oil and gas lease on appellee’s land in 1931, after examination of his title, and paid him only a nominal consideration therefor. It was an “unless” or “wildcat” lease, imposing no drilling obligation or rental payment except at the election of lessee. From time to time its attorneys made certain objections to the Howth title, and he in- good faith cooperated with them in curing record defects pointed out, and succeeded in removing most of them. It renewed its lease from year to year by paying the nominal renewal fee of $1 per acre in lieu of drilling. That lease was more than the conveyance of a determinable fee interest in the minerals. It created the relationship of lessor and lessee between appellee and the Shell Petroleum Corporation and, as lessee, the Shell Petroleum Corporation owed the utmost good faith to appellee .in its dealings with the property. Yet, under ap-pellee’s theory of the case, and the findings of the jury, it breached its obligations to the serious damage of appellee. Through its agents it approached the Gregorys, who up to that time-had asserted no claim adverse to appellee, and secured from them powers of attorney to Noland and Wier by virtue of which the adverse claim was actively asserted. It later took to itself an oil and gas lease from the Gregorys, covering the very same interest which it held under lease from appellee Howth. Under that lease they asserted not merely the interest of the two minors but the interest of the other Gregory heirs who denied the validity of the deed to Howth & O’Fiel, and disputed in toto Howth’s title to the land and to the interest which he purported to convey by the lease to the Shell Petroleum Corporation. At the time this adverse interest was acquired by appellant, it had invested in the property only the very nominal consideration paid to Howth. It had not developed the property or made any investments on it which it was forced in extremis to undertake to protect by such methods. Had it concluded that the Gregory title was superior to the Howth title, and so had promptly surrendered back to Howth the lease which it had obtained from him, it would occupy a different position before us. But it did nothing of the kind. It retained the Howth lease which completely denied his right to lease the property to others or to obtain development of it. It is a matter of common knowledge that when new developments in the discovery and production of oil are in progress the lease and sale value of nearby lands fluctuate greatly. A piece of land may be worth many thousands of dollars today and next to nothing tomorrow. Hence it is of prime importance to the land owner in such situation 'that he be free to deal with his land promptly and deliver title, or -make contracts with reference to it without delay. This is a valuable right. And appellants’ conduct denied that right to appellee. The evidence shows that oil developments and discovery of oil had occurred in the near vicinity, and that the property in question had greatly enhanced in *263value after Shell’s lease was taken in 1931. Under these facts we believe that appellants are liable to appellee in damages under the principle announced in Humble Oil & Refining Co. v. Kishi, Tex.Com.App., opinion adopted by Supreme Court, 291 S.W. 538. It is our conclusion that appellee plead a justiciable cause of action, and had he owned all of the title, as found by the court, it is our further conclusion that the evidence was sufficient to support the judgment for the actual and exemplary damages assessed by the jury.
It appears on the face of the judgment that actual damages were awarded appellee on the theory that he was the owner of the absolute title to all the land in controversy. Under our holding, ap-pellee owned only nine-tenths of the title, Ike Gregory and Billie Gregory Bourgeois owning an undivided one-twentieth each. The next question that presents itself to us is appellee’s right to recover. damages under allegations of ownership of the entire title and the finding by the court to that effect when in fact he owned only nine-tenths of the title. The jury awarded appellee $65,000 actual damages. Can this court affirm the judgment in appellee’s favor for the actual damages awarded, less the interest owned by Ike Gregory and Billie Gregory Bourgeois? This question is answered in the negative by the holding of the Commission of Appeals in Humble Oil & Refining Co. v. Kishi, supra.
From what we have said, it follows that the judgment of the lower court in all respects must be reversed and the cause remanded for a new trial, except that part which denies recovery of the Gregory heirs, which will be affirmed except as to Ike Gregory and Billie Gregory Bourgeois.
In view of a new trial, we make the following conclusions on the propositions advanced by the Shell Petroleum Corporation in its brief: (a) The contract executed by appellee to the Shell Petroleum Corporation on the 12th day of January, 1931, was the ordinary lease contract; it was not, as contended by ap-pellee, a mere option to acquire title to the minerals, but was a conveyance of the minerals. We gave that construction to leases of the character in issue in Bailey v. Shell, Tex.Civ.App., 95 S.W.2d 982, and Jones v. Bevier, Tex.Civ.App., 59 S.W.2d 945; writs refused in both cases, (b) After executing his lease to Shell Petroleum Corporation, appellee conveyed a fractional interest in his royalty to other parties; these vendees of appellee were necessary parties to his action to cancel the lease. Sharpe v. Landowners Oil Ass’n, 127 Tex. 147, 92 S.W.2d 435. (c) Appellee’s lease contract to Shell Petroleum Corporation contained the following provision : “10. If lessor owns a less interest in the above described land, than the entire, undivided and * * * qualified fee simple estate therein, then all royalties and all rental and other moneys herein provided shall be paid or delivered to lessor only in the proportion which lessor’s interest in said land bears to the entire undivided and unqualified fee simple estate therein.”
Under this condition of the lease, the mere fact that Shell Petroleum Corporation may have taken lease contracts from Ike Gregory and Billie Gregory Bourgeois did not make them a trespasser or wrongdoer against the rights of appellee; as appellee’s cotenant the taking of the lease did not, as a matter of law, constitute a violation of the duty they owed him. Roberts v. Thorn, 25 Tex. 728, 78 Am.Dec. 552; McFarlin v. Leaman, Tex.Civ.App., 29 S.W. 44. It had a perfect right to lease or purchase the interest of any cotenant of appellee. What we have held is that it had no right to put in motion a claim which denied in toto its lessor’s title and actively assert it against him, while at the same time claiming all rights, title and benefits acquired from him by his lease.
Under its lease from appellee, Shell Petroleum Corporation was his cotenant; that contract did not create between them, in all its relations, the relationship of landlord and tenant. Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021; Hager v. Stakes, 116 Tex. 453, 294 S.W. 835; Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27; Sigler Oil Co. v. W. T. Waggoner Estate, Tex.Civ.App., 276 S.W. 936; Humble Oil & Ref. Co. v. McLean, Tex.Civ.App. 268 S.W. 179; Id., Tex.Com.App., 280 S.W. 557. But, if the relation between appellee and Shell Petroleum Corporation in certain respects be construed as that of landlord and tenant, under the provisions of the contract quoted above, Shell Petroleum Corporation had the right to acquire any interest in the land not owned by appellee and attorning to the owner of that interest would not, as a matter of law, constitute a repudiation of the relationship of landlord and tenant as *264between it and appellee. Roberts v. Thorn, supra.
The evidence was sufficient to raise the issues submitted to the jury by the questions copied above.
Counsel’s fees, expenses in preparing the case for trial, and the loss of credit, on the facts of this case, are not recoverable as actual damages; they are not considered proximate results of the wrong complained of; evidence on these issues may be received in support of punative damage. Houston Production Co. v. Taylor, Tex.Civ.App., 33 S.W.2d 202.
Without bringing forward the specific points made by appellants against the court’s charge, defining terms, complaining that the charge was on the weight of the evidence, etc., these propositions are overruled, as are also the assignments against the admission of evidence and the failure of the court to receive certain evidence.
For the reasons stated, the judgment of the lower court is reversed and the cause remanded for a new trial, except as to the Gregory heirs other than Ike Gregory and Billie Gregory Bourgeois.