Duncan v. Green , 1937 Tex. App. LEXIS 1465 ( 1937 )

On Motion for Rehearing. Appellants have filed a motion for rehearing in which they earnestly insist that we erred in our original opinion affirming the judgment of the trial court awarding a certain undivided interest in one of the tracts in controversy to intervenors. We have carefully examined the briefs of both parties to this appeal, and we find that no error was assigned by either appellants or appellees to the action of the trial court in this regard. The error, if any, in this respect, is not of a fundamental nature and cannot be considered by us. It is also insisted in said motion that we erred in our original opinion in setting aside that part of the trial court's judgment decreeing a foreclosure of the vendor's lien notes on the land in controversy. We have again examined the record and find no pleadings by either party to this suit which would authorize a foreclosure of the vendor's lien. Guerra v. Garza, Tex. Civ. App.93 S.W.2d 537. The pleadings of appellees, in our opinion, were amply sufficient to authorize the trial court to enter a judgment for the debt evidenced by the Elrod notes and fix a lien on the land securing same. It is true the appellants will suffer the inconvenience of having to bring an action to foreclose the lien already fixed by the judgment of the trial court, but they will lose no legal rights respecting said lien. Monroe v. Buchanan, 27 Tex. 241; Silliman v. Gammage, 55 Tex. 365; Elliott v. C. C. Slaughter Co., Tex. Civ. App. 236 S.W. 1114; York v. Robbins, Tex.Com.App., 255 S.W. 720.

The motion for rehearing is overruled.