On Motion for Rehearing.
Appellee has filed an extended motion for rehearing, in wMch he insists that he did *692not deal with the property as his own after he knew all the acts of fraud alleged to have been practiced on him. Eor instance, he says he did not know that Clayton had a deed reconveying the Noble’s Point property to him until the trial began in April, 1913.
The deed from, Clayton and his wife to A. B. Carlisle was dated July 17, 1911, and acknowledged by Clayton the same day, and by his wife on July 25, 1911. In this the Noble’s Point property was conveyed, and on the same day Mrs. Clayton acknowledged the deed to Carlisle in Los Angeles, Carlisle executed his reconveyance to Clayton in Hamilton county, Tenn. This is rather rapid work, it is true; but this could not have any bearing on Kjellman in dealing with the California property as his own. He placed the $3,000 mortgage on a part of section 19 on July 20, 1911, three days after Clayton acknowledged his deed to Carlisle and two days before Mrs. Clayton acknowl-ed that same deed. So at the time Kjell-man executed the mortgage he could not have been affected by a belief that Carlisle, an innocent purchaser, had acquired the Noble’s ¡Point property, because he did not then know that Clayton had sold it. In fact, Clayton’s wife had not acknowledged the deed in California at the time Kjellman put the $3,000 mortgage on section 19. This is a rapid age, as shown by the fact that Carlisle in Tennessee executed a sale to Clayton of property he had, we assume, that morning bought in Los Angeles, Cal. But speedy as these transactions were, we do not believe that Kjellman could have been influenced by an event that did not happen until two days later, unless it be that “coming events cast their shadows before.” The Car-lisle deed could not have been an excuse for placing the mortgage loan on section 19 and thereby dealing with the property as his own after he knew all of the alleged fraudulent acts. Kjellman says: “When I found out Clayton had deeded my property to another party, I thought I was shut out; that was the way I looked at it.” He could not have thought this when he put the $3,000 mortgage on section 19, July 20, 1911, because at that time neither the deed from Clayton to Carlisle nor the one from Carlisle back to Clayton had been executed and were not till July 25, 1911. So Kjellman is in error about being in any way influenced thereby.
So we have seen that Kjellman discovered the last alleged act of fraud February 8, 1911, when he had section 19 surveyed and found, as he says, that it had been misrepresented, and that the good land shown him was not on that sectiop, and that the amount and value of greasewood under the ground was not as represented. July 20th following this, he mortgaged a part of section 19 for $3,000, bought up two other mortgages, and sold them again to Springer, who foreclosed under them and sold the land. He could not have been influenced by the Clayton deed to Carlisle because it was not Anally executed until July 25, 1911, and was not placed of record until subsequent to that time. With all the alleged fraud before him and with full knowledge thereof, he has put the land beyond his reach. True, he says he had an arrangement with the purchaser to convey it if necessary; but the purchaser makes no such offer, and no legal document appears by which he could be compelled to do so. The placing of land beyond his power to return it has destroyed his right to rescission (El Campo Co. v. Texas Supply Co., 147 S. W. 338), unless he had shown a valid excuse to explain his conduct, which he has not done (Geiser Mfg. Co. v. Lunsford, 139 S. W. 64). In the El Campo Case, supra, the pleadings themselves show, on part of the complaining party, that the property had passed beyond the control of the party seeking to rescind. It was held that a rescission could not be had and the Supreme Court denied a writ of error. The court said: “By the pleading, it will be seen that the ownership of the engine and the producer had passed to another, the Water, Light & Power Company of El Campo. By the sale of the engine and the producer, appellant put it out of its power to deliver either thereof to appellee, which, in law, constitutes an election on its part to accept the property and to proceed by some other avenue for its remedy. Kempner v. Advance Thresher Co., 54 Tex. Civ. App. 650, 118 S. W. 714. Nor does the fact that the Water, Light & Power Company of El Campo had rejected the engine and producer after its purchase from appellee, as alleged, change the situation. ' That concern, it seems, had sued appellant for damages, which appears to be inconsistent with the claim that it also had rejected the engine and producer, and that appellant, for that reason, was prepared to deliver same back to appellee. We understand that ‘contracts can only be rescinded where it is possible to put the parties back in their original position and with their original rights. A contract, voidable for fraud, cannot be avoided when the other party cannot be restored to his status quo. If it cannot- be rescinded in toto, it cannot be rescinded at all; but the complaining party must resort to an action for damages’ (9 Cyc. 437, 438), or,' as he may do under our statutes, plead failure of consideration in a suit to recover the purchase money. There may be some variation in the rule; but the pleading in the instant case presents none.”
The plaintiff’s own pleadings in this case show that Kjellman had mortgaged the property and fail to put him in a position to restore it; and the evidence of plaintiff puts it even further from his power to restore, and he could not therefore recover as was done.
Appellee’s very able motion for a rehearing has caused us to go more into detail than we otherwise would have done. But we do not believe that he has shown any right to *693rescission of the contract, and therefore adhere to our original opinion, and overrule the motion.