Gould, Associate Justice.
The superiority of Roosvelt’s title over that of Davis was settled on the former appeal. The muniments of title adduced in evidence on the second trial are the same which were passed on before by this court, and we regard the questions argued by counsel for Davis as having been substantially settled.
In regard to the alleged want of proper parties and the failure to present the purchase money notes at maturity at the place where made payable, and the question as to when time is of the essence of a contract, we remark that this is not an equitable proceeding on the part of Roosvelt to have a contract rescinded. He is simply enforcing his legal right to the land, and the defendant, to defeat a recovery, should either tender the unpaid purchase money, or otherwise proffer to do equity.
The assignments of error of the intervenor, L. D. James, present questions not considered on the former appeal.
The first assignment of error presents the question of the sufficiency of the seal affixed by a commissioner of deeds of the state of Texas for the state of Mississippi, in 1868, to his certificate of the acknowledgment of two different deeds. The impression of the seal shows no star in the center, and the name of the state (Texas) appears to be written on the impression, not engraved. The answer is that there was no statute in force at the time the certificate was made, requiring the commissioner to provide for himself a seal with a star of five points in the center. There was such a statute in regard to commissioners in the Chocktaw, Chickasaw, Cherokee and Creek nations of Indians, and there is now such a statute in regard to commissioners generally. Pasch. Dig., art. 3771; R. S., art. 547. At the time when the certificates were made, the form of the seal does not appear to have been prescribed, and the one used cannot be pronounced insufficient.
[315]*315The second assignment of error objects to the refusal of two special instructions asked by intervenor, both of which, on examination, are found to refer to the question of notice. The purport of the first was, that if the recitals of the deed from Watson to James were sufficient to put a prudent man on inquiry, then Roosvelt was chargeable with notice and knowledge of the contents of the decree of the court in Louisiana, and of the pleadings in said cause. The purport of the second instruction asked was to allow the jury to consider the admissions, declarations, acts and conduct of Watson and Joshua James, prior to the deed by James to Matthews, in determining whether Roosvelt purchased with notice of an equitable title in Mrs. James, provided Roosvelt was put on inquiry by the recitals of the deed to Joshua James. There was a clause in this instruction as asked, to the effect that the allegations of a party or his attorney in his pleadings are admissible to prove the statements of such party. It is unnecessary to inquire whether or not these charges asked were in all respects correct. The court in its charge as given, allowed plaintiff no advantage whatever on the ground of being a purchaser without notice. The purport of the court’s charge on the intervenor’s claim may be gathered from the following extract:
“8. The decree of the district court of Louisiana does not in itself assume to convey, or direct said Watson to convey, any particular land in the state of Texas, but the jury may consider of said decree, and the recital in the deed from Watson to James, relating to said decree, in determining the ownership of said Mary K. James in the land, and give it such weight as they may think it entitled to. In regard to the ownership of the said Mary K. James in the land, the jury will take into consideration the evidence in relation to the consideration paid, and by whom paid, in the conveyance from Cornell to said Watson; the trust agreement made in 1848, and its terms; the decree of the district court aforesaid; the mortgage deed and its terms, made by Joshua James and Mary [316]*316K. James to Oliver Matthews, together with all other evidence introduced; and i£ the jury believe from all the evidence and the circumstances connected therewith, that at the time the land in controversy was conveyed by Cornell to Watson, the said Mary K. James was the equitable owner of said land, and that said Watson held the legal title in his name in trust for her; and if the jury, from the evidence, further believe that said Mary K. James afterwards died, leaving the interveuor as one of her heirs, they will find for the intervenor.”
In no part of the charge was the plaintiff allowed to recover as against intervenor, on the ground of absence of notice of his rights. Clearly the intervenor cannot complain of the refusal to give his special instructions as to notice. Under this assignment of error, counsel for intervenor submits numerous propositions, the relevancy of which to that assignment does not appear.
The third assignment of error, and the third and fifth errors embraced in a second assignment of errors, are claimed to be fundamental. They present the failure of the court to instruct the jury as to intervenor’s rights if the land was community property of James and wife, instead of her separate property, and the failure to instruct them what it takes to constitute a trust relation, and what an equitable title. As the intervenor asked no instructions on these matters, our opinion is that he is not entitled now to demand another trial merely because the charge did not embrace a full presentation of the law. The court might, with propriety, have given instructions as to the effect of the documentary evidence, and as to what would constitute an equitable title in Mrs. James. The intervenor, however, appears to have allowed the case to go to the jury under a charge, submitting to them whether, under “ all the evidence and circumstances,” Watson held the legal title in trust for her, and we do not think the defects in the charge can now avail him.
The fourth assignment of error objects to the overruling the motion for new trial, claiming that the verdict and judg[317]*317ment were contrary to law and the evidence, and may be considered in connection with the fourth error in the assignment of fundamental errors, to wit: that the jury were told that in determining the ownership of Mrs. James, they should inquire who paid the consideration of the conveyance by Mrs. Cornell to Watson. We think the jury were properly allowed to look to the evidence outside of the decree. Intervenor claims that the judgment of the court in Louisiana and the recitals in the deed from Watson to James, concluded the parties and privies from denying the trust relation and from denying the equitable title of Mrs. James and of intervenor. But however it might be, if the question were between Watson on the one hand, and James and wife on the other, our opinion is that the decree was not conclusive to show that the land in controversy was held by Joshua James in trust. The admissions in the joint pleadings of James and wife were not conclusive as between them. The existence of the trust in the land in controversy, even as against Watson, was not specifically declared by the decree. That decree could not directly affect the title to land in Texas, nor did it on its face purport to do so.
The alleged trustee did not convey this land to Mrs. James, but did convey it to Joshua James. What trusts attached to the land in the hands of Joshua James, was a question dependent not on the decree alone, but to be determined from other facts tending to explain the transaction.
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Gould, Associate Justice.
The superiority of Roosvelt’s title over that of Davis was settled on the former appeal. The muniments of title adduced in evidence on the second trial are the same which were passed on before by this court, and we regard the questions argued by counsel for Davis as having been substantially settled.
In regard to the alleged want of proper parties and the failure to present the purchase money notes at maturity at the place where made payable, and the question as to when time is of the essence of a contract, we remark that this is not an equitable proceeding on the part of Roosvelt to have a contract rescinded. He is simply enforcing his legal right to the land, and the defendant, to defeat a recovery, should either tender the unpaid purchase money, or otherwise proffer to do equity.
The assignments of error of the intervenor, L. D. James, present questions not considered on the former appeal.
The first assignment of error presents the question of the sufficiency of the seal affixed by a commissioner of deeds of the state of Texas for the state of Mississippi, in 1868, to his certificate of the acknowledgment of two different deeds. The impression of the seal shows no star in the center, and the name of the state (Texas) appears to be written on the impression, not engraved. The answer is that there was no statute in force at the time the certificate was made, requiring the commissioner to provide for himself a seal with a star of five points in the center. There was such a statute in regard to commissioners in the Chocktaw, Chickasaw, Cherokee and Creek nations of Indians, and there is now such a statute in regard to commissioners generally. Pasch. Dig., art. 3771; R. S., art. 547. At the time when the certificates were made, the form of the seal does not appear to have been prescribed, and the one used cannot be pronounced insufficient.
[315]*315The second assignment of error objects to the refusal of two special instructions asked by intervenor, both of which, on examination, are found to refer to the question of notice. The purport of the first was, that if the recitals of the deed from Watson to James were sufficient to put a prudent man on inquiry, then Roosvelt was chargeable with notice and knowledge of the contents of the decree of the court in Louisiana, and of the pleadings in said cause. The purport of the second instruction asked was to allow the jury to consider the admissions, declarations, acts and conduct of Watson and Joshua James, prior to the deed by James to Matthews, in determining whether Roosvelt purchased with notice of an equitable title in Mrs. James, provided Roosvelt was put on inquiry by the recitals of the deed to Joshua James. There was a clause in this instruction as asked, to the effect that the allegations of a party or his attorney in his pleadings are admissible to prove the statements of such party. It is unnecessary to inquire whether or not these charges asked were in all respects correct. The court in its charge as given, allowed plaintiff no advantage whatever on the ground of being a purchaser without notice. The purport of the court’s charge on the intervenor’s claim may be gathered from the following extract:
“8. The decree of the district court of Louisiana does not in itself assume to convey, or direct said Watson to convey, any particular land in the state of Texas, but the jury may consider of said decree, and the recital in the deed from Watson to James, relating to said decree, in determining the ownership of said Mary K. James in the land, and give it such weight as they may think it entitled to. In regard to the ownership of the said Mary K. James in the land, the jury will take into consideration the evidence in relation to the consideration paid, and by whom paid, in the conveyance from Cornell to said Watson; the trust agreement made in 1848, and its terms; the decree of the district court aforesaid; the mortgage deed and its terms, made by Joshua James and Mary [316]*316K. James to Oliver Matthews, together with all other evidence introduced; and i£ the jury believe from all the evidence and the circumstances connected therewith, that at the time the land in controversy was conveyed by Cornell to Watson, the said Mary K. James was the equitable owner of said land, and that said Watson held the legal title in his name in trust for her; and if the jury, from the evidence, further believe that said Mary K. James afterwards died, leaving the interveuor as one of her heirs, they will find for the intervenor.”
In no part of the charge was the plaintiff allowed to recover as against intervenor, on the ground of absence of notice of his rights. Clearly the intervenor cannot complain of the refusal to give his special instructions as to notice. Under this assignment of error, counsel for intervenor submits numerous propositions, the relevancy of which to that assignment does not appear.
The third assignment of error, and the third and fifth errors embraced in a second assignment of errors, are claimed to be fundamental. They present the failure of the court to instruct the jury as to intervenor’s rights if the land was community property of James and wife, instead of her separate property, and the failure to instruct them what it takes to constitute a trust relation, and what an equitable title. As the intervenor asked no instructions on these matters, our opinion is that he is not entitled now to demand another trial merely because the charge did not embrace a full presentation of the law. The court might, with propriety, have given instructions as to the effect of the documentary evidence, and as to what would constitute an equitable title in Mrs. James. The intervenor, however, appears to have allowed the case to go to the jury under a charge, submitting to them whether, under “ all the evidence and circumstances,” Watson held the legal title in trust for her, and we do not think the defects in the charge can now avail him.
The fourth assignment of error objects to the overruling the motion for new trial, claiming that the verdict and judg[317]*317ment were contrary to law and the evidence, and may be considered in connection with the fourth error in the assignment of fundamental errors, to wit: that the jury were told that in determining the ownership of Mrs. James, they should inquire who paid the consideration of the conveyance by Mrs. Cornell to Watson. We think the jury were properly allowed to look to the evidence outside of the decree. Intervenor claims that the judgment of the court in Louisiana and the recitals in the deed from Watson to James, concluded the parties and privies from denying the trust relation and from denying the equitable title of Mrs. James and of intervenor. But however it might be, if the question were between Watson on the one hand, and James and wife on the other, our opinion is that the decree was not conclusive to show that the land in controversy was held by Joshua James in trust. The admissions in the joint pleadings of James and wife were not conclusive as between them. The existence of the trust in the land in controversy, even as against Watson, was not specifically declared by the decree. That decree could not directly affect the title to land in Texas, nor did it on its face purport to do so.
The alleged trustee did not convey this land to Mrs. James, but did convey it to Joshua James. What trusts attached to the land in the hands of Joshua James, was a question dependent not on the decree alone, but to be determined from other facts tending to explain the transaction. The question of fact as to the equitable interest of Mrs. James in the land was submitted to the jury and decided against intervenor, and we cannot say that the court erred in refusing to set that verdict aside.
The only other errors assigned are the first and second of those claimed to be fundamental, and are substantially disposed of by what has already been said as to the superiority of Roosvelt’s legal title, and as to the purport of the charge precluding plaintiff from recovering as an innocent purchaser without notice. Our conclusion is, that the intervenor has assigned no error entitling him to claim another trial.
[318]*318In addition to what has already been said, there are two other considerations which lead us to think that the verdict and judgment are substantially right.
If, in fact, Joshua James held the land in trust for his wife, who was equitably the owner thereof in her separate right, she joined with her husband in mortgaging the land to Matthews. The intervenor claiming as her heir a purely equitable right to the land, should not be allowed to dispossess the holder of the legal title, acquired under the mortgage, without first doing equity by paying off the mortgage debt.
If, however, the land was community property of Joshua James and wife, then it was competent for the husband as the survivor of the community to sell the land in payment of a community debt. In either case, the intervenor was not entitled to recover.
Affirmed.
[Opinion delivered April 23, 1880.]