The opinion
On Rehearing.
Defendants Brite and Brown specially pleaded .that the note in suit was fully discharged before those defendants acquired the land, and that after defendants acquired the land Carter “conceived the idea of cheating and swindling this defendant, and for that purpose placed the same in the hands of an attorney, with instructions to bring suit on the same in the name of plaintiff, his brother and business associate, under the pretense that he was the owner of the same.” Thus the issue of Thompson’s ownership of the note at the time of the trial was specially tendered, and, if that plea had been sustained, no personal judgment would have been rendered in favor of Thompson. The only testimony introduced to show that Thompson purchased the note related to its acquisition prior to the purchase of the land by both Brown and Brite, and we adhere to the conclusion heretofore reached that it is apparent that the court' sustained the plea of estoppel urged against Thompson and for that reason only refused to decree a foreclosure of the lien upon the land.
Appellees Brite and Brown both now pray for a judgment to be rendered in favor of Brite against Brown on the latter’s warranty of title to the former. It appears from the deed from Brown to Brite that the consideration paid for the land was $550, a sum in excess of the amount of the personal judgment in favor of Thompson. Accordingly judgment is here rendered in favor of appel-lee Brite against appellee Brown for such amount as Brite may be compelled to pay on the personal judgment heretofore rendered in favor of appellant Thompson in order to prevent the sale of the land under the judgment of foreclosure, or, if the land be sold under said foreclosure, then for such of the proceeds of such sale as may be applied upon said personal judgment.
Appellee Brite has filed a further motion here invoking a judgment by this court on his plea over against Carter. According to both his pleadings and the evidence in support thereof, Carter made no representations to him inducing him to buy the land. The only grounds upon which Brite sought a judgment against Carter were the alleged representations made by Carter to Brown, and upon which Brown predicated his plea over against Carter, Brite alleging and testifying that the same representations were repeated to him by Brown, and that he was induced thereby to purchase and pay cash for the land. No facts were alleged or proven to show any liability on the part of Carter for the repetition to Brite of the representations made by Carter to Brown. Hence the judgment is here rendered that Brite take nothing against Carter upon such plea over against Carter, and that, as to such plea, Carter go hence without day and recover of Brite his costs incurred by reason of such plea over.
A motion has also been made by Brown for a remand of the case for trial of the issue presented by Brown against Carter, which motion is sustained, and the cause remanded for trial of that issue only. Except as otherwise shown above, the motion for rehearing is overruled. The costs of this appeal are taxed against appellees Brite and Brown.