On Motion for Rehearing.
Appellees earnestly insist that our decision is, not only erroneous, but in eonilict with a number of Texas cases. 'We held that the .evidence raised an issue of fraud, that is, that Swindall, without negligence on his part, was led by deception to convey in fee simple *1099the acre Of land to the school authorities under the belief that the conveyance was upon a conditional limitation; therefore we concluded, as a matter of law, that the deed executed under such circumstances was void, because never assented to by the grantor; hence appellees, claimants under the void instrument, could not claim protection as innocent purchasers.
The authorities from this state, cited in our original opinion, sustain the proposition that an instrument executed under such circumstances is, not merely voidable, but absolutely void. This doctrine is also announced in Williston on Contracts, vol. 3, § 1488, page 2648, in the following language: “Fraud may induce a person to assent to do something which he would not otherwise have done, or it may induce him to believe that the act which he does is something other than it actually is. In the first ease, the act of the defrauded person is effectual, though voidable; in the second ease, the act of the defrauded person is void.” To the same effect, see Delvin vol. 2, § 726; Biddeford National Bank v. Hill, 102 Me. 346, 66 A.721, 120 Am. St. Rep. 499; Chickasaw L. & T. Co. v. Mills, 59 Okl. 230, 158 P. 1156; Horvath v. National Mortgage Co., 238 Mich. 354, 213 N. W. 202, 56 A. L. R. 578; Oatman v. Hampton, 43 Idaho, 675, 256 P. 529; McGinn v. Tobey, 62 Mich. 252, 28 N. W. 818, 4 Am. St. Rep. 848; Whipple v. Brown Bros. Co., 225 N. Y. 237, 121 N. E. 748; Smith v. Ryan, 191 N. Y. 452, 84 N. E. 402, 19 L. R. A. (N. S.) 461, 123 Am. St. Rep. 609, 14 Ann. Cas. 505.
The authorities, from this and other states, fully sustain the proposition that an instrument, the execution of which is induced by fraudulently representing its contents to be other than it actually is, stands on no higher ground than a forgery and is therefore void.
Any number of cases may be found, involving instruments induced by fraud relating to the consideration that were held simply voidable, and that parties holding thereunder, if innocent purchasers, could successfully defend on that ground. There can be no debate at this point, but an instrument executed under circumstances that we believe the evidence tends to show Swindall executed the instrument in question could not have attained the status of a contract, because never assented to, and being void would possess no greater value in law than a mere forgery.
After carefully examining all cases cited by appellees in briefs, as well as in motions for rehearing, we fail to find where the identical question under consideration was either discussed or decided. The nearest approach to the question is found in Ramirez v. Bell (Tex. Civ. App.) 298 S. W. 924, 927. Ramirez and wife sued Bell and Wendlandt to cancel a deed executed by them, conveying to Bell their homestead, consisting of 121 acres of land in Bastrop county, and to cancel a deed of trust placed on the land by Bell to secure Wendlandt in the payment of a loan of $5,-000. Plaintiffs contended that their signatures were obtained to the deed under the belief induced by Bell’s representations that it-was a mortgage, thus an issue as to the genuineness of the instrument as their act was made, in other words, that the deed was in law a forgery, and that the facts and circumstances put Wendlandt upon notice. Bell contended that the deed evidenced a conditional sale, and Wendlandt contended that he made the loan believing Bell to be the owner and was without knowledge or notice to the contrary. The court found that the deed to Bell was in fact a mortgage, that the evidence raised the issue of notice to Wend-landt and remanded the case for trial on that issue. The nearest approach to a discussion of the proposition involved here is found in the following statement, the court said: “The second contention that the deed was a forgery, and therefore void, if procured by representation that it was only a mortgage, is overruled.” After making this statement, the court proceeded to discuss forgery as it existed at common law and as it exists under our penal code, and disposed of this phase of the case by holding that the deed was not a forgery, but in fact a mortgage, that the circumstances raised the issue of notice to Wendlandt, and reversed and remanded the ease for trial on that issue alone.
The evidence furnished ample basis for the proposition involved here, that is, that the instrument was void because its terms were never assented to by the grantors, but it seems they rested their contention on the proposition that the instrument was void because a forgery, and this being the proposition urged was the question decided.
Appellees insist that Swindall was negligent in executing the instrument; that, if due care had been exercised, he could have ascertained the nature of the instrument before signing; that appellees were thereby misled to their injury.. Therefore plaintiffs are estopped to a'ssert the invalidity of the deed. This contention embodies a correct principle, and on trial the jury máy find that Swindall was in fact negligent, but this also presents a question for the determination of the jury under a proper definition, and submission of the issue.
Appellees insist that we erred in finding that the suit was instituted March 26, 1929, instead of March 22, 1930, and we are asked to correct the finding.
At page 43 of the statement of facts, we find the following agreement: “It is agreed by all parties to this suit that the original petition in this case was filed on the 22nd day of March, 1930; whereas, at page 80 of the statement of facts, we find the following: *1100‘Agreement: It Is agreed between all parties to this suit that after the filing of this suit on March 26, 1929, the plaintiff filed notice of lis pendens now of record with the county clerk of Van Zandt County, Texas, fully setting out the nature and character of this suit.’ ” Appellants contend in their brief that the suit was instituted March 26, 1929, whilst ap-pellees contend in their brief that the correct ’ date is the 22d day of March, 1930. These entries are of equal dignity, but irreconcilable. We think it inexcusable that a record containing contradictory agreements to the same fact should have been presented to an appellate court, or circumscribed by the record as we are that the court should have been called upon to settle the controversy in regard to a date so certain and easy of ascertainment as not to admit of real controversy. We have had no way of determining the matter, except by indulging a presumption, or by ransacking the record for corroborative evidence. The fact in issue, that is, thq date of the institution of the suit, is only material on the'question of limitation, and, as the burden of that issue is upon appellees, we could have dismissed the matter by indulging the presumption that the earlier date, the one most favorable to appellants, is the correct one; however, we have not done so, but, by diligent search, find hidden away in a citation copied in the transcript a recitation, to the effect that the suit was instituted on March 22, 1930; hence find that the contention of appellees is corroborated and the original opinion has been corrected accordingly. In view, however, of the uncertainty caused by these contradictory entries and contentions, this finding is for this hearing only, and will not conclude either party on a retrial of the cause.
After carefully considering all grounds urged by appellees for rehearing, and finding no reason to change our decision, the motions are overruled.
Overruled.