On Motion for Rehearing.
On June 18, 1910, P. J. Harmon conveyed to Oscar F. Ponce, for a recited consideration of $29,100, of which $15,500 was in cash and the balance in three promissory notes, 727.5 acres of land in three tracts, the third tract of 80 acres being described as a part of what is known as the “Magnolia Fig & Orange Colony.” A vendor’s lien was retained in the deed on the land to secure the deferred payments. There is no mention in the deed of any conveyance to Harmon from P. Cohn or any one else. Harmon claimed *499to have received a deed from Cohn to the land, but no such deed was on record nor produced by Harmon. He seeks to account for the-absence of the deed by a claim that it had been lost or misplaced. Cohn is dead and the existence of the deed to the 727 acres of land from Cohn to Harmon rests alone upon the testimony of Harmon. The letter written by him to Cohn on December 28, 1910, does not ask for a deed to him, but the plain inference from the terms of the letter is that the deed was to be executed to a “party from Wichita who was down here some time back.” No reason can be assigned for having a deed made to Harmon and then executed by him to Ponce. He is the only witness that testified to having seen a deed made to him by Philip Cohn, and he, although he had written about certain considerations, did not know what consideration was recited in the deed. At the time that Harmon swore the land was conveyed to him by Cohn he was behind in payments on notes collected by him. Harmon claimed to have received the deed to him in January, 1911, the date of the letter containing it being January 2, 1911. The deed to Ponce was dated June 18, 1910, more than .6 months before Harmon had any deed to it, and it was placed on, file for record on July 25, 1910, and it was on record months before the supposed deed from Cohn to Harmon was executed. Ponce was an associate with Harmon in selling Cohn’s land. He did not live in Wichita when the deed was made to him by Harmon and was not living there when Harmon wrote the letter to Cohn in December, 1910. It was a case of an agent selling to his partner in the business agency. Ponce did not know who owned the land when he bought it. Ponce did not record his deed from Harmon, but the latter recorded it. Ponce did not pay any taxes on the land, and never did go into actual possession of the land. Harmon was in possession of it. Ponce did not get any abstract of title to the land, and Harmon did not tell him he owned the land, and never told Ponce that he had a deed from Cohn. There is testimony tending to show that a man named Lauhmiller, of Wichita, had bought land from Harmon and may have been the man from Wichita referred to in Harmon’s letter to 'Cohn. Ponce seems to have known almost nothing about the tract of land which Harmon sold him without having a deed himself, and who remained in possession after the sale, just as he had before. Philip Cohn died in May, 1912, without any knowledge of the sale made by Harmon to Ponce, so far as shown by any witness except Harmon, who seems to be the real party to the suit and not qualified to testify as to his transactions - with Cohn within the spirit of the law, if not within the letter.
Louis Prank was a brother-in-law and partner of Philip Cohn and had been very intimate with him for 10 years prior to his death. Prank swore positively that Cohn did not execute a deed to the land in controversy to Harmon. Cohn always acted in regard to matters of importance through Prank. Ponce knew nothing of the existence of the deed, Harmon alone swearing to its existence and loss. Whether the deed was ever acknowledged is not shown, and the efforts put forth to discover it were not adequate to show diligence. The evidence is not sufficient to show the execution of a deed by P. Cohn to the 727 acres.
The motion is overruled.