This suit was brought by appellee Rosa H. Fiest, joined by her husband, against appellant, and also against E.W. Cave and E.H. Vasmer. It was alleged in the petition that Rosa Fiest was the owner of a certain tract of land therein described lying in Harris County, and that in order to secure the payment of the sum of $500 borrowed by her husband of the appellant she, together with her husband, executed to appellant a conveyance in form an absolute *Page 144 deed, but which was intended as a mortgage of the land only. It was further alleged that Boothe, in order to defraud the plaintiff Rosa, colluded with his codefendant Cave to make a sale to him of a part of the land, and accordingly conveyed such part to Cave, who had knowledge of the plaintiff's rights in the premises. A similar allegation was made with reference to a conveyance of the remaining parcels to defendant Vasmer.
The plaintiff's prayed for a recovery of the land, and in the event that the court should be of the opinion that they were not entitled to that relief, they prayed that the plaintiff should have judgment against defendant Boothe for its value. The residence of Boothe was alleged to be unknown, but plaintiff's averred that they believed it to be in De Witt County. Cave and Vasmer were alleged to reside in Harris, the county in which the suit was brought.
The defendant Boothe interposed a plea in abatement of the suit, in which he alleged "that before and at the commencement of this action and of service of process herein he, the said defendant, resided in the county of De Witt and had his domicile therein; that the defendants Cave and Vasmer arebona fide purchasers for value without notice of plaintiffs' pretended adverse claim, and never colluded with defendant Boothe as charged by plaintiffs, and defendant has parted with all claim of rights, title, and interest in and to said land long prior to the institution of this suit, which facts were well known by plaintiffs, who brought suit for said lands and joined the said Cave and Vasmer as the said Boothe's codefendants for the purpose of maintaining action against said defendant out of the county of his residence for the alleged wrong complained of by plaintiffs, and all of this defendant is ready to verify."
A demurrer was sustained to this plea, and in this ruling there was no error. It is well settled that whenever a defendant pleads his privilege of being sued in the county of his residence he should aver not only that he resides in some other county than that in which he is sued but also that he is not a resident of the latter county, and should also negative the existence of every state of facts which would give the court jurisdiction of the suit. Admitting then that the plaintiffs knew they could not recover the land as against the defendants Cave and Vasmer, and that they made them parties defendant for the fraudulent purpose of depriving the of the privilege of being sued in De Witt County, there still remained in the petition allegations of fact which set up a cause of action against Boothe for his breach of trust. If the deed made to him by plaintiffs was intended to take effect only as a mortgage, his sale of the land without consent of the plaintiffs was a fraud upon their rights, and a suit to recover damage for the tort may have been properly brought in any county in which the fraud was perpetrated — that is to say, in which the sale was made. Rev. Stats., art. 1198, exception 7. The exception in the statute applies as well to constructive *Page 145 as to actual fraud. Stanley v. Westrop, 16 Tex. 200. It follows that in order to have made the plea of privilege good the defendant should have averred that the sale of the land was not made in Harris County. The defendant should also have alleged that he did not reside in that county. Crawford v. Caruthers, 66 Tex. 199. But it may be that the omission was rendered unimportant by the allegation as to his residence in plaintiff's petition. But we need not decide the question.
Appellant's second, third, fourth, and fifth of error complain of rulings of the court upon the question of jurisdiction. Since the exception to defendant Boothe's plea of privilege had been stricken out there was no longer any question of jurisdiction before the court. This is an answer to each of these also to the seventh, which complains of the verdict because there was no finding upon the issue as to the jurisdiction of the court. There was no such issue before the jury.
In regard to the measure of damages the court instructed the jury that if they found that the deed was intended as a mortgage, and if Boothe sold the land to Cave and Vasmer without the consent of plaintiffs, and if Cave and Vasmer were innocent purchasers, "he (Boothe) would be responsible to Mrs. Fiest for the full value of the land at any time before the institution of the suit," etc. We are of opinion that this charge is erroneous. The case is a peculiar one and it is not easy to find all exact precedent. The wrong is somewhat in the nature of the conversion of personal property, in which the measure of redress is the recovery in money of a sum equal to the value of the property at the time of the conversion. In Phillips v. Herndon, 78 Tex. 378, in which the appellee after making a bond for title to convey land upon the payment of the purchase money conveyed it to an innocent holder for value, it was held that if the original purchase money had been paid, the heirs of the vendee (he being dead) were entitled to recover of the vendor at least the value of the land at the time of the second sale. So also there are cases growing out of contracts for the sale of merchantable commodities to be delivered in future, in which the purchaser in case of the default of the seller is entitled to recover the highest market price of the commodity at any time between the date at which it was to have been delivered and the day of the trial. But none of these is the case we have before us. As applied to such a case the rule in equity is stated to be that "the cestui que trust may compel the trustee to purchase other lands of equal value, or thecestui que trust may elect to take the proceeds of the sale with interest." 2 Perry on Trusts, sec. 844 and cases cited. This rule would indicate that where the beneficiary sues for compensation and not for the proceeds of the sale with interest the measure of his recovery would be the value of the *Page 146 land at the time of the trial; and we think such the proper rule in this case.
We are also of opinion that appellant should be entitled to a deduction from the value of the land of an amount equal to his debt and the interest thereon until the time of the trial, unless the defendant elects to take the proceeds of the sale, in which event the interest should be counted only to the day of the sale.
The jury in their verdict deducted the appellant's debt but did not make any deduction for interest after the date of its maturity.
The judgment is reversed and the cause remanded.
Reversed and remanded.
Delivered March 6, 1891.