We have carefully considered the motion in this case, and find no reason to change our views as to the questions determined in the former opinion of this court. Defendants in error, however, claim that the judgment should not have been rendered by this court, but that the case should have been remanded for a new trial, because the evidence tends to show, that the purchase of the land at execution sale was in fact for Gage, and deeded to Durrell for Gage's benefit; also that the evidence tends to show, that Durrell consented to the sale at Alpine, and is therefore estopped. Upon the last question we do not think there is sufficient evidence in the record to justify sending the case back for another trial, and we would not remand upon that ground alone. However, the parties may produce more evidence upon that point on another trial, and we will not discuss the facts in the record.
Upon the first question the Court of Civil Appeals found as follows: "On the 4th day of August, 1891, the appellee (appellant) H.C. Durrell *Page 110 purchased at execution sale, by virtue of levies made under valid executions issued upon valid judgments against E.L. Gage, all lands upon which appellees seek in this case to foreclose the mortgages given by Gage; that said sale was in all things regular, and that Durrell received deeds made by virtue of said sale, which were duly executed, and he paid the purchase money, and his deeds were duly recorded in Brewster and Buchel Counties, on August 5, 1891. At the time of said execution sale Durrell's agent, who made the purchase for him, had actual notice of the mortgages given by E.L. Gage on said lands to secure the bonds sued on." This was sufficient to show that Durrell acquired all the right of Gage in the lands, and upon this finding this court acted in rendering judgment here.
The record shows, that the statement of facts contains admissions made at the trial in which the substance of the finding of the Court of Civil Appeals is embraced, but after that we find in regular order the testimony of the witness W.W. Turney, who, without objection on the part of the plaintiff in error, testified, in substance, that "the executions under which the land was sold and the deeds made to Durrell were sent to Giles, an attorney, and that he, Turney, was at the time the attorney of E.L. Gage, employed by the year; that Gage sent to him from Cincinnati a list of the lands to be furnished to the sheriff, in order that the executions might be levied thereon; that Gage made out this list while in Texas, and then went to Cincinnati, where Durrell resided, after which the list was sent to Turney; that he, Turney, bid in the land, and that Gage sent him a draft for the money with which to make the payment, which was also sent from Cincinnati, which was $57 short of the amount required. This sum was, about one year after that time, paid by Durrell's son. Durrell was Gage's father-in-law. Turney had all correspondence about the purchase of the land with Gage, and acted for Gage; never knew anything of Durrell in the matter.
From this state of the record, it appears to us that the parties did not understand the admission made in the statement of facts to operate to the extent of showing that the title actually passed to Durrell by the sale under executions; if it had been so understood by them, the defendant below would have objected to the testimony of Turney quoted above; in fact it would not probably have been offered by plaintiffs.
This court will not render judgment upon reversal except that the facts be such that the court below could not properly have rendered any other judgment than that entered by this court; nor will the court render a judgment upon reversal, if it appear that in order to do justice to the parties other facts are necessary to be passed upon by the court or jury.
Upon the facts found by the Court of Civil Appeals we conceive the law to be, that the plaintiff in error was entitled to a judgment; but upon the evidence in the record as quoted above, it may be that *Page 111 the land was in fact the property of Gage, and in that event, the acts of Gage after the execution sale would be properly considered in determining whether or not the acts of the bondholders had the effect to release the land mortgaged by him.
It is therefore ordered, that a rehearing be granted in this case, that the judgment heretofore entered by this court be set aside, and that for the errors indicated in the former opinion of this court the judgments of the District Court and Court of Civil Appeals be reversed, and this cause be remanded for trial in accordance with this opinion.
Reversed and remanded.
Delivered May 16, 1895.
DENMAN, Associate Justice, did not sit in this case.