Quinan, J.
It is unnecessary to discuss severally the different assignments, or attempt a reply in dotad to the multitude of propositions and counter propositions, divided and subdivided under the various assignments. It would serve only to give a prolix and perhaps confused statement of our views. We choose rather to notice the prominent points taken, and which tend directly to a decision of the case.
In the first place, we are of opinion that the charge of the judge complained of in the second assignment of error “is erroneous.” It is in the following words: “ It is also admitted that the facts recited in both of said deeds are true. The deed of assignment, the decree of the district court of Brazoria county, and the admissions of the parties, show that [544]*544the legal title was in plaintiff after the death of Terry.” We find in the transcript no admission of the defendants which would warrant the giving of this charge, and we think it was calculated, in connection with the instructions otherwise given, to mislead the jury. 2d. They were instructed also that “the conveyance to Wharton by Frankland and Terry vested in him, and those claiming under him, only an equitable right to obtain the legal title on the payment of the notes, and till then the legal and superior title to the land remained in Frankland, unless John Barnes, under the terms authorized by the deed and decree, took the notes as cash, and credited Jones with so much as paid, thereby to that amount discharging the debt of Jones to plaintiff.” This instruction made essential to the divestiture of the superior title out of Frankland upon which he sought a recovery, “an absolute discharge of Jones’ debt to Barnes, and put upon the defendants the necessity of proving it. How we think this is manifestly an erroneous construction of the terms of the decree defining the powers of the trustee. It was the province of the court to construe it and to deliver its true meaning to the jury, and in our judgment there is no ambiguity about it upon this point. Conceding (because it is unnecessary to this discussion) that the deed to Wharton did not vest the legal title in Lanfear, to whom the notes of Wharton, and the mortgage to secure them, were made, and that as a consequence of the notes remaining in the hands of Frankland and Terry for collection, the superior title continued there also, it would seem to be very clear that when the notes were no longer in the hands of Frankland and Terry, when they had parted with the possession of them, and were released from “all further attention to said notes and accountability therefor,” that they no longer had any title, legal, equitable, superior or otherwise, in the land. The decree, by its terms, reserved the right to Barnés to take any purchase money notes he chose, and credit them upon his debt, and thereafter Frank-land and Terry should no longer be accountable for them; but it reserved the right, also, to Frankland and Terry, and [545]*545it became their duty, to hold and control, and collect them, unless, they were so taken. There is nothing in the deed or decree to authorize the assignees to deliver to Barnes the notes and mortgages on any other terms, and nothing giving any right to Barnes to take them upon any other terms. By the stipulations of the deed it is wholly immaterial whether Barnes ever collects the notes he elects to take. If he takes and receives- them the assignees are entitled, of course, to a credit for them. They cannot be held accountable to him for what has passed out of their control and of which they have parted with the power to collect. The notes were payable, by Barnes’ appointment, to Lanfear, as Barnes’ trustee; and, while they remained in Barnes’ possession and control, Jones’ assignees had no power to collect them. And, on the other hand, passing into Barnes’ hands, payable to his agent, and he having the possession and the beneficial interest in them, the mortgage, the vendor’s lien, and every other incident belonging to them, went with them, and nothing remained in Frankland and Terry.
An examination of the decree will show that what is therein said as to the notes and mortgages not operating as a credit or payment “ of the amount thereof to said plaintiff, and not in any manner impairing his claim and lien against the estate of said Jones, until the collection and payment of the proceeds to said Lanfear, except in cases of purchases in election to take said notes as hereinbefore specified,” will show that this provision has reference, and can have reference, only to those notes and mortgages which remain in the possession and control of the assignees. It is absurd to suppose that Barnes could receive the notes and take possession and control of them, so depriving Frankland and Terry of the power to collect them, and, though the proceeds may never be collected and paid over to Lanfear, .hold them accountable for them, and that, nevertheless, his claim and lien against the estate of Jones should not be in any manner impaired. Obviously this is not the fair construction of the decree. It contemplated an arrangement for the security of both parties. Barnes sought to collect his- debt [546]*546through the sale of the property, and Jones’ estate was interested in the sale of the property and that the proceeds should be faithfully collected and applied to the release of the incumbrance upon it. The duty and obligation of the assignees was to both parties. To the estate, that the notes and mortgages should not pass beyond their control, except in discharge of the debt, and to Barnes, that the property shall be speedily and advantageously sold and faithfully paid over. It would be a gross breach of trust, on the part of the assignees, to deliver the assets of their trust estate to the cestui que trust, without a corresponding release of the liability of the grantor.
We think, therefore, the court erred in the construction it put upon the terms of the conveyance and decree.
There was error also in overruling the motion for a new trial. The verdict was manifestly against the evidence.
From what we have said upon the proper construction of the conveyances and decree, it will be seen that if the superior title to the land remained in Frankland, and he could be entitled to recover the land in consequence, it could only be as the result of his retention of the notes given for the purchase money. To them attached the vendor’s lien, and with them it went into whatsoever hands they passed. The • owner of the notes owns the security. Frankland cannot have the superior title to the land, and Barnes the vendor’s lien upon it. if or can Frankland hold or set up any title to the land when he has parted with the legal title and the notes also given for the purchase money. And that Frank-land and Terry have long since transferred the notes, and have no longer any title or interest in them, barred or unbarred, is proven by the plaintiff himself and his witnesses.
Frankland swears: “We, the trustees, paid over and delivered to John B. Jones, who was the agent and attorney of John Barnes, all cash and notes received for the lands and other property of said trust estate.”
Holmes swears that all the cash and notes received at the sales were paid over and delivered to John B. Jones, as the agent and attorney in fact of John Barnes, and that the notes of Wharton were among them.
[547]*547[Opinion delivered June 24, 1880.]
They were paid and delivered. Payment implies a corresponding credit.
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Quinan, J.
It is unnecessary to discuss severally the different assignments, or attempt a reply in dotad to the multitude of propositions and counter propositions, divided and subdivided under the various assignments. It would serve only to give a prolix and perhaps confused statement of our views. We choose rather to notice the prominent points taken, and which tend directly to a decision of the case.
In the first place, we are of opinion that the charge of the judge complained of in the second assignment of error “is erroneous.” It is in the following words: “ It is also admitted that the facts recited in both of said deeds are true. The deed of assignment, the decree of the district court of Brazoria county, and the admissions of the parties, show that [544]*544the legal title was in plaintiff after the death of Terry.” We find in the transcript no admission of the defendants which would warrant the giving of this charge, and we think it was calculated, in connection with the instructions otherwise given, to mislead the jury. 2d. They were instructed also that “the conveyance to Wharton by Frankland and Terry vested in him, and those claiming under him, only an equitable right to obtain the legal title on the payment of the notes, and till then the legal and superior title to the land remained in Frankland, unless John Barnes, under the terms authorized by the deed and decree, took the notes as cash, and credited Jones with so much as paid, thereby to that amount discharging the debt of Jones to plaintiff.” This instruction made essential to the divestiture of the superior title out of Frankland upon which he sought a recovery, “an absolute discharge of Jones’ debt to Barnes, and put upon the defendants the necessity of proving it. How we think this is manifestly an erroneous construction of the terms of the decree defining the powers of the trustee. It was the province of the court to construe it and to deliver its true meaning to the jury, and in our judgment there is no ambiguity about it upon this point. Conceding (because it is unnecessary to this discussion) that the deed to Wharton did not vest the legal title in Lanfear, to whom the notes of Wharton, and the mortgage to secure them, were made, and that as a consequence of the notes remaining in the hands of Frankland and Terry for collection, the superior title continued there also, it would seem to be very clear that when the notes were no longer in the hands of Frankland and Terry, when they had parted with the possession of them, and were released from “all further attention to said notes and accountability therefor,” that they no longer had any title, legal, equitable, superior or otherwise, in the land. The decree, by its terms, reserved the right to Barnés to take any purchase money notes he chose, and credit them upon his debt, and thereafter Frank-land and Terry should no longer be accountable for them; but it reserved the right, also, to Frankland and Terry, and [545]*545it became their duty, to hold and control, and collect them, unless, they were so taken. There is nothing in the deed or decree to authorize the assignees to deliver to Barnes the notes and mortgages on any other terms, and nothing giving any right to Barnes to take them upon any other terms. By the stipulations of the deed it is wholly immaterial whether Barnes ever collects the notes he elects to take. If he takes and receives- them the assignees are entitled, of course, to a credit for them. They cannot be held accountable to him for what has passed out of their control and of which they have parted with the power to collect. The notes were payable, by Barnes’ appointment, to Lanfear, as Barnes’ trustee; and, while they remained in Barnes’ possession and control, Jones’ assignees had no power to collect them. And, on the other hand, passing into Barnes’ hands, payable to his agent, and he having the possession and the beneficial interest in them, the mortgage, the vendor’s lien, and every other incident belonging to them, went with them, and nothing remained in Frankland and Terry.
An examination of the decree will show that what is therein said as to the notes and mortgages not operating as a credit or payment “ of the amount thereof to said plaintiff, and not in any manner impairing his claim and lien against the estate of said Jones, until the collection and payment of the proceeds to said Lanfear, except in cases of purchases in election to take said notes as hereinbefore specified,” will show that this provision has reference, and can have reference, only to those notes and mortgages which remain in the possession and control of the assignees. It is absurd to suppose that Barnes could receive the notes and take possession and control of them, so depriving Frankland and Terry of the power to collect them, and, though the proceeds may never be collected and paid over to Lanfear, .hold them accountable for them, and that, nevertheless, his claim and lien against the estate of Jones should not be in any manner impaired. Obviously this is not the fair construction of the decree. It contemplated an arrangement for the security of both parties. Barnes sought to collect his- debt [546]*546through the sale of the property, and Jones’ estate was interested in the sale of the property and that the proceeds should be faithfully collected and applied to the release of the incumbrance upon it. The duty and obligation of the assignees was to both parties. To the estate, that the notes and mortgages should not pass beyond their control, except in discharge of the debt, and to Barnes, that the property shall be speedily and advantageously sold and faithfully paid over. It would be a gross breach of trust, on the part of the assignees, to deliver the assets of their trust estate to the cestui que trust, without a corresponding release of the liability of the grantor.
We think, therefore, the court erred in the construction it put upon the terms of the conveyance and decree.
There was error also in overruling the motion for a new trial. The verdict was manifestly against the evidence.
From what we have said upon the proper construction of the conveyances and decree, it will be seen that if the superior title to the land remained in Frankland, and he could be entitled to recover the land in consequence, it could only be as the result of his retention of the notes given for the purchase money. To them attached the vendor’s lien, and with them it went into whatsoever hands they passed. The • owner of the notes owns the security. Frankland cannot have the superior title to the land, and Barnes the vendor’s lien upon it. if or can Frankland hold or set up any title to the land when he has parted with the legal title and the notes also given for the purchase money. And that Frank-land and Terry have long since transferred the notes, and have no longer any title or interest in them, barred or unbarred, is proven by the plaintiff himself and his witnesses.
Frankland swears: “We, the trustees, paid over and delivered to John B. Jones, who was the agent and attorney of John Barnes, all cash and notes received for the lands and other property of said trust estate.”
Holmes swears that all the cash and notes received at the sales were paid over and delivered to John B. Jones, as the agent and attorney in fact of John Barnes, and that the notes of Wharton were among them.
[547]*547[Opinion delivered June 24, 1880.]
They were paid and delivered. Payment implies a corresponding credit. If they were paid to Barnes, his debt was reduced so much by payment, and the assignees must have credit for it. We must presume they did their duty; that they did not pay them to Barnes without a credit for them; and it is certain that Barnes, by receiving them as a payment, acquired the absolute title to them, and with them whatever right or interest attached to. them in the land for which they were given.
So that Frankland, by his own proof, established .the fact that he had no interest in this land when he sued for'it, and had no right to recover it. It was absolutely necessary to his recovery that he should have and own the notes, that the consequence should attach of retaining; if he had it, the superior title to the land in him; and the burden of proof was on him to show this when it had been disclosed that the notes had passed once into other hands, and to negative the presumptions arising therefrom.
The remaining assignments it is unnecessary to consider. The charge of the judge upon the subject of limitation was altogether irrelevant until the ownership of the notes by Frankland was shown. If sued on by Lanfear or Barnes, the statute of limitation of four years would apply, and the doctrine of superior title would not apply; for, in our judgment, the superior title does not pass to the assignee or transferee of a purchase money note, though the vendor’s lien does. See Baker v. Compton, 52 Tex., 252.
The owner of the notes, not the original payee, is not the owner of the land. A promissory note is not a sufficient conveyance of lands upon which it has a lien.
For the errors indicated in the charge of the judge, and that the verdict is against the evidence, we award that the case be reversed and remanded.
Reversed and remanded.