UPON REHEARING.

We have made a careful examination of this case, and have_ been unable to discover any possible ground for the plaintiff’s recovery. His petition is based upon the theory that the Lereauxs, his assignors, were the equitable owners of the land, and that the defendant had a claim against the same for money advanced for the Lareauxs’ benefit, and held at one time the legal title to the land for security. So far the parties seem to be agreed. Now the question is, did the Lereauxs, by reason of what afterward transpired, acquire a money claim against the defendant for the sum of $140? We are unable to see that they did. The theory of the petition is that the defendant sold and conveyed the land to one Viers. But it is not averred that Tiers was a purchaser without notice, nor shown in any way that the Lereauxs were deprived of their right to redeem. Besides, if it had been shown, .it would not have appeared from the petition that the Lereauxs acquired a claim against the defendant for $140. Where a person holds the title to real estate in trust for another, and he wrongfully sells and conveys the property to an innocent purchaser, the equitable owner may, undoubtedly, recover of the trustee the damages which he has sustained by reason of the trustee’s wrongful act, but he cannot recover more than nominal damages without an averment showing what the value of the property was, above all liens and charges held by the trustee. The petition contains no such averment.

*688When we come to the evidence, the plaintiff’s case is equally weak. It shows beyond dispute that the defendant never conveyed the property to Tiers. lie did, it is true, make a contract of sale, and received $390, the amount of his claim against the property. But the Lereauxs were not injured thereby. If the sale was not authorized by them, it bad no effect except to convey the defendant’s interest. The Lereauxs remained tlie equitable owners, and bad a right to redeem. Their interest could be cut off only by the conveyance of the legal title, and that to a purchaser for value without notice. Tiers not only did not acquire the legal title, but, as the evidence shows, he had full notice of the rights of the Lereauxs.

Some other questions are argued, but the foregoing views dispose of the case. The former opinion must be adhered to, and the judgment

Beversed.

The plaintiff alleges that the defendant advanced, for the use of the Lereauxs, a certain sum of money, and tbat he obtained the legal title to certain lands owned by them, which he was to hold as security for the sum advanced. All this the defendant admits. Under this state of facts, the defendant would have a lien upon the lands for the amount advanced, and the remedy of the Lereauxs, or their assigns, would be to redeem by payment of the amount with interest. The plaintiff, however, excuses himself from making any effort to redeem, by the allegation that the defendant has deeded the land to Tiers, and thus put it out of his power to reconvey, if redemption should be made. This allegation is material. Unless this fact exists, the plaintiff has no standing in the form of action which he has adopted. The evidence shows, without any conflict, that the defendant has not deeded the land to Tiers, but that he still holds the title in his own name. Even if the defendant had conveyed the land as alleged, the measure of plaintiff’s damages' would not be the $140 advanced by the Lereauxs toward the redemption, but the amount for which the defendant sold the land, or the excess of the reasonable value of the land above the amount which the defendant received for it. The plaintiff, however, insists that the defendant sold the land only for enough to reimburse himself, and there is not a particle of evidence that the reasonable value of the land was more. Under the evi*687dence adduced, the plaintiff is not entitled to recover, and the court should have sustained the motion for a new trial, upon the ground that the verdict is not sustained by the evidence. The appellee claims that the motion for a new trial was not filed within the time prescribed in the statute, but this claim is not sustained by the transcript, into which we have been obliged to look, on account of a dispute as to the correctness of the abstract.

Reversed.