citation">98 Tex. 162,82 S.W. 459, 83 S.W. 184) and the oral testimony were sufficient to charge appellant with notice of the fraud perpetrated by Neff, Neblett, and Marrett on appellee. There is no finding, nor is there any evidence raising such an issue, that appellant in any manner actively participated in such fraud. Being chargeable then with notice of some vice affecting Mrs. Marrett's title, the law imposed upon appellant the duty of making a proper inquiry to ascertain the facts. We hold it to be a complete discharge of this duty to go, as appellant did, to Mrs. Heimer, herself, and there make inquiry if his purchase of the property would be agreeable to her. Upon his doing so, the law imposed upon appellee the duty, if she had any valid objections, to interpose them then and there. Failing to do so, she should not afterward be heard to complain when appellant upon the faith of her silence has purchased the property, paying a valuable consideration therefor. Under the undisputed facts the trial court should have rendered judgment for appellant, notwithstanding the verdict, which, as we have already seen, in no manner connected appellant actively with the fraud committed on appellee.

The judgment of the district court is, *Page 142 therefore, reversed, and judgment here rendered in favor of appellant for the land in controversy; but judgment is also rendered in favor of appellee Mrs. Louisa C. Heimer for the sum of $2,400, together with interest at the rate of 8 per cent. per annum from February 18, 1910, being the amount of the C. D. Neff note assumed by appellant, together with a foreclosure of the vendor's lien on the land in controversy.

Reversed and rendered.

On Rehearing. Appellee's motion for rehearing presents nothing that would cause us to change our holding on the original hearing, and it is, accordingly, overruled.

But appellant's motion to reform the judgment rendered in favor of appellee for the sum of $2,400 must be sustained. First, we were in error in allowing appellee to recover interest. The pleadings of appellant and the undisputed evidence and agreement of the parties in open court show that appellant tendered the amount of his note at its maturity, and also made a legal tender of the same in court on trial, and he should therefore be relieved from the payment of all interest.

Furthermore, we were in error in not allowing appellant a credit against appellee for the amount of the rents of the property in controversy. As stated on the original hearing, it was undisputed that appellee has at all times retained possession of the property awarded to appellant, and the jury find that its reasonable rental value from March 9, 1910, to the date of the trial is $40 per month. The judgment heretofore entered by us is therefore modified so as to be in appellee's favor for the sum of $2,400, without interest, less a credit in appellant's favor of $40 per month from March 9, 1910, the date of Mrs. Marrett's deed to appellant, to February 21, 1913, the date of the trial in the district court This judgment is without prejudice, of course, to the rights of the parties accruing since the trial in the district court.

Appellant's motion to reform the judgment is, accordingly, granted as herein shown.

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