On Motion for Rehearing.
Further consideration of the record has convinced us that the court should have peremptorily instructed a verdict in favor of appellants, and therefore that the seventh assignment, complaining of his refusal to do so, should have been sustained. As, con-formably to this conclusion, a judgment in favor of appellants will be rendered here, it is immaterial, so far as the appeal is concerned, whether the rulings made by us when the record was first before us were correct or not. We therefore will not undertake to justify those rulings as against the attack made on them by appellant, that they were not authorized by assignments in the record, and that, if they were, they were erroneous. If erroneous, we think they were so as against appellants in holding that on the case made appellees were entitled to any relief at all. We were and are yet unable to agree, as contended for by appellees, that under the agreement claimed to have been entered into by the parties at Mineral Wells Tillar “became possessed” of their “equitable,” quoting from the brief, “title and estate in this land upon an express trust to convey our interest in that land to our own purchaser and account to us for our part of the proceeds after he had gotten in a position to execute that trust.” It might be said that appellants held the legal title to the land in trust for appellees so long as their contract for the purchase thereof was alive, but it cannot, we think, be said that they or Tillar held for appellees the equitable title they had in or to the land.
[1] That title, it seems, could have been passed by them to Tillar only by a deed in writing executed and delivered by them to him. Sayles’ Stat., art. 624; Clitus v. Lang-ford, 24 S. W. 325; Wilson v. Nugent, 91 S. W. 242; Sanborn v. Murphy, 5 Tex. Civ. App. 509, 25 S. W. 459. It is not pretended it was so passed.
[2] If Tillar should not be treated as a trustee holding for appellees an equity they owned in the land, then the wrong he did them could not have been to pass to Rule and Allen such an. equity; for, if he was not such a trustee, he could not, had he attempted to do so, by any act of his, have passed to Rule and Allen an equity belonging to appellees. The wrong he did appellees consisted of his refusal to comply with his agreement to waive for appellants their right to declare a forfeiture of appellees’ equity in the land because of the latter’s failure to make the payment due by them May 11, 1907, and to act as their agent in negotiating a sale of that equity to Rule and Allen. Appellees’ remedy for this wrong was not to recover of appellants as something they (appellants) had received on their (appellees’) account, a portion of the consideration paid by Rule and Allen for the land, but it was for damages for breach of the undertaking by Tillar to waive the forfeiture and act for them in effecting a sale of their equity to said Rule and Allen.
The judgment heretofore rendered remanding the case will be set aside, and a judgment will be here rendered that appellees take nothing by their suit against appellants.