Bond v. Bumpass , 100 S.W.2d 1047 ( 1936 )

On Rehearing.

LOONEY, Justice.

Appellee, Ed R. Bumpass, alone moves for rehearing, urging as grounds the same urged for affirmance of the judgment of the trial court, which we denied, as shown in the original opinion filed herein, on December 19, 1936. The contention is also made that our holding is in direct conflict with the rule announced in Bielss v. Moeller (Tex.Civ.App.) 83 S.W.(2d) 1098, 1100. After a careful consideration of the Bielss-Moeller Case, we fail to find the conflict. That case involved strictly a sale and purchase of real estate, grantors and grantee being tenants in common and heirs of Emilie Bielss, Heinrich Bielss being her surviving husband, the other grantors and the grantee being her children. The grantee executed separate notes to each grantor for the respective interests conveyed; however, in general terms, the deed retained a lien upon the lands conveyed. The question presented was whether the lien in favor of each grantor was spread over the entire land or confined to the interest conveyed. The court held that the lien applied only to the interest conveyed by him or her, saying that, “The fact that separate notes were executed to each grantor for the full amount of the purchase price of his or her particular interest amounts, we think, to a segregation of that interest from the interests of the other vendors.” In other words, the court failed to find, in the transaction, an intention to fix a lien on any interest other than on the respective interest owned and conveyed by each grantor.

Since the deed under consideration conveyed to appellee Bumpass the entire interest in the land, expressly retaining a lien to secure the' note given for the ¾1 undivided interests purchased by him, and since the note executed by him also acknowledged the existence of the lien on the entire interests in the land, in the absence of any contention that the conveyance or the note was the result of either fraud, accident, or mistake, we do not think an explanation can be found for the transaction, other than that it was the intention of the parties to secure the note by an express vendor’s lien on the ¾i interest conveyed, and by a contract lien, in the nature of a mortgage, on the %i interest owned by ap-pellee, as additional security.

This conclusion is strengthened by the subsequent transactions had between the parties — that is, on January 1, 1936, ap-pellee Bumpass executed a note renewing and extending the original note (of date January 11, 1929) acknowledging therein the existence of the lien on the entire interest in the land as security, also a deed of trust dated January 13, 1936, by which appellee conveyed the land to Fred T. Porter, as trustee, without restriction or limitation as to the interest conveyed, to secure the indebtedness, as evidenced by the original and renewal notes; the net result of the latter transactions being, not the creation, but simply an acknowledgment of the continuing existence of the lien created by the original deed and note, with the added provision for foreclosure under the powers given the trustee.

We see no reason to change our decision; therefore the motion for rehearing is overruled.

Overruled.