William, Ernest, and John S. Hicks brought this suit against J. W. Armstrong, defendant in error herein, to recover a one-half undivided interest in 129' acres of land, for rents thereon and for partition of their interest therein; and against the Mortgage & Trust Company of Pennsylvania to cancel a deed of trust alleged to have been given by Armstrong thereon to it, so far as the same affected plaintiffs’ interest therein, alleging ouster by defendant in error, who claimed title through Mary F. Duncan, but alleging that she could not confer title on him, except as to one-half thereof, because only one half of the purchase price paid therefor belonged to her, and the other half belonged to them; and, notwithstanding the fact that the deed was taken in her name, yet by reason of the fact that their money paid for one-half of said land, a resulting trust arose therefrom in their favor for said one-half interest. ¡
There was a jury trial, resulting in a verdict and judgment in behalf of John S. Hicks against defendant Armstrong for ten acres of the land and $55 as rents thereon, but in favor of defendant Armstrong as against the other two plaintiffs; and likewise judgment in behalf of the mortgage company establishing its lien as superior to the interest of the others in said land, providing, however, that if said tract of land was ever sold to satisfy said lien the part so owned by Armstrong should first be sold and exhausted before subjecting that of John S. Hicks thereto. Eor a fuller and more comprehensive statement of the issues, as well as the evidence submitted in support thereof, see Hix v. Armstrong, 101 Tex. 271, 106 S. W. 317, and Hix v. Armstrong, 108 S. W. 797.
The plaintiffs, as well as the defendant Armstrong have each sued out writs of error from the above judgment, and while presenting many reasons urging that the judgment should be reversed, we think it necessary only to consider those that must, in our judgment, have controlling effect in the disposition of this appeal.
The first error assigned by plaintiffs in error was the refusal on the part of the court to direct a verdict in their behalf for their proportionate share of the land and the rental value thereof, asserting by their first proposition thereunder that since the evidence established that Mary E. Duncan was the guardian of plaintiffs and as such, received in her possession the property of plaintiffs with which she acquired the land in controversy, she held the title to said land as trustee for the plaintiffs, and her subsequent sale of the same to Armstrong, who bought with notice of plaintiffs’ title thereto, entitled them to recover, and the court should have so charged the jury.
[1] The evidence showed that Mary P. Duncan, under whom defendant in error Armstrong claimed the land, paid for one-half thereof with money belonging to plaintiffs, taking title in her own name. This being true, she could only convey to Armstrong a one-half interest in said land. A resulting trust arising, by reason of the above facts, in behalf of plaintiffs, she must be held to be a mere trustee for their benefit as to the other half of said land, and therefore, said sale by her to Armstrong did not divest title out of plaintiffs to their half thereof. See Hix v. Armstrong, 106 S. W. 317, and 108 S. W. 797, supra; also Blankenship v. Douglas, 26 Tex. 225, 82 Am. Dec. 608; Brown v. Marwitz, 10 Tex. Civ. App. 458, 32 S. W. 78; Lumpkin v. Smith, 62 Tex. 249; McCoy v. Crawford, 9 Tex. 354.
[2] While this contention on the part of plaintiffs is correct on this feature of the case, still, since the evidence required a submission of the issue of limitation pleaded by defendant, it would have been error to have given it. Besides, the. plea of innocent purchaser could not be raised under the facts in evidence, and therefore the action of the court is immaterial, for which reason we overrule this assignment.
[3] It is unnecessary to consider the remaining assignments of plaintiffs in error, as they, in effect, complain of rulings of the court in refusing charges and admitting evidence relative to the issue of Armstrong’s being an innocent purchaser. This issue, as we conceive, was not in the case, and it was immaterial ,what may have been the ruling of the court in regard thereto; for which reason they are all overruled.
[4, 5] Defendant in error Armstrong, who likewise sued out a writ of error, asks that the judgment against him in favor of John S. Hicks be reversed, because it is urged that the court erred in disregarding the findings of the jury in his favor on his plea of innocent purchaser, and rendering judgment against him in favor of John S. Hicks for 10 acres of land and $55 as rents thereon. The case was submitted to the jury on special issues. Among others submitted was this: “Was Armstrong an innocent purchaser in good faith at the time he bought the 239 acres of land from Mrs. Mollie P. Duncan?” To which the jury answered, “Yes,” and he claims that it was error not to have rendered judgment for him for all of the land on this finding, on the ground that the court cannot disregard the verdict and render judgment non obstante veredicto, citing Telegraph Co. v. James, 41 Tex. Civ. App. 560, 91 S. W. 654; Scott v. P. & N. Bank, 66 S. W. 493, and other cases. It is held by Chief Justice Pisher in the case first cited that the practice of rendering judgment non obstante veredicto is obsolete in Texas, and that the court has no .power to render judgment as against the verdict, but in such instances could grant relief only by setting aside the verdict and granting a new trial. While this is true, still, in the present case-no error, we think, was committed because of the fact that the issue so presented on.
We overrule the remaining assignments presented on the part of defendant in error, for the reason that they are, in our judgment, without merit.
[6] Both plaintiffs in error and defendant in error have filed cross-assignments, the consideration of which, however, we deem unnecessary, since the matters covered by them have been, we think, heretofore disposed of; but, even if they have not been, these assignments cannot be considered, since a special verdict was rendered upon special issues submitted by the court, and said cross-assignments failed to show that- any motion was made to set aside the findings of the jury in the respects complained of in the lower court, said respective cross-assignments therefore are each and all overruled. See Smith v. Hessey, 134 S. W. 256.
Believing that the justice of the case has been reached and no reversible error shown, the judgment of the trial court is affirmed.
Affirmed.