Bell, J. We are of opinion that the court erred in the first, instruction given to the jury. There was evidence before the jury, that D. B. Ponton, who was defendant in the court below, had been in the actual possession of the land in controversy, for some time previous to the execution of the deed of trust, executed by A. J. Ponton to Streich, for the benefit of Ballard. This being so, it should have been submitted to the jury, to determine whether or not, the possession of D. B. Ponton was of such a character as to affect Ballard with notice of the title under which he held the possession.

The instruction which the court gave to the jury, permitted them to find in favor of the plaintiff, Ballard, unless they believed from the evidence, that Ballard had-“actual notice,” at the time of the execution of the deed of trust to Streich, of the bond for title from A. J. Ponton to D. B. Ponton. Now, if the title of- Ballard could be affected by showing that, at the time of the execution of the deed of trust, he had notice of the title of Ponton, it would be just as effectual to show that he had constructive notice, as to show that he had actual notice.

The instruction, therefore, was unfavorable to Ponton, and he may well complain of it, as furnishing to the jury a ground upon which to find their verdict, which is not tenable in law. We deem it unnecessary to discuss other questions in the case, as the judgment must be reversed for the error of the court in giving the first instruction to the jury. Although there were other grounds upon which the jury might have found their verdict, yet we cannot undertake to say that they did not find upon the first instruction given by the court. The judgment of the court below is reversed and the cause remanded.

Reversed and remanded.