On Motion for Rehearing. In his motion for a rehearing, counsel for the plaintiffs in error complains of the statement made in the original opinion that his brief did not contain any assignments of error. He states what appears to be true, that four copies of his *Page 717 brief were filed in this court, and one in the court below; two of the copies filed in this court contained the assignments of error, the other two did not. The failure to incorporate the assignments in all of the copies, he says, was due to an error on the part of the stenographer. We are not disposed to treat that accidental omission as warranting a refusal to consider the assignments otherwise presented. The statement in the opinion was due to the fact that only those copies which did not contain the assignments happened to be the only ones examined in disposing of the appeal. But aside from an error in the amount of the judgment entered in the court below, the controlling questions raised by the assignments were considered.
There are, we think, but two grounds presented which call for a discussion. One is, Did the court acquire jurisdiction of the person of Isham Sparks? The other, Did the evidence justify the trial court in concluding that the lien expressed in the notes given for the purchase money of the 29-acre tract was revived and renewed by the extension agreement?
The court filed findings of fact at the instance of counsel then presenting the parties defendant, and in those findings it is stated that both defendants appeared by counsel of their own selection. How the court reached that conclusion does not appear. It may be that it was based upon observations of what occurred in his presence during the progress of the trial. However, upon further examination, we find that the record shows that Isham Sparks was cited by publication issued upon an affidavit stating that his residence was unknown. It is conceded that Isham Sparks was at the time a resident of the county of Harris in this state. Being then a citizen and resident of this state, he was brought within the jurisdiction of the court by citation by publication. Knowles v. Logansport G. C. Co., 19 Wall. 59, 22 L. Ed. 70; O'Neill v. Brown,61 Tex. 34; Traylor v. Lide (Tex. Sup.) 7 S.W. 58; Fernandez v. Casey,77 Tex. 452, 14 S.W. 149; Northcraft v. Oliver, 74 Tex. 162, 11 S.W. 1121; Treadway v. Eastburn, 57 Tex. 209; 2 Black on Judgments, § 907.
The next question is, Was the court authorized by the evidence to conclude that the lien above referred to was revived and extended? The following is the material portion of the agreed facts bearing upon that issue:
"That thereafter on the 17th day of March, 1920, by a duly acknowledged instrument in writing, Isham Sparks executed and acknowledged and delivered to Mrs. S. M. Summers, community administratrix, his certain extension agreement wherein he promised to pay to Mrs. S. M. Summers, community administratrix, $500 on the 1st day of January, 1921, being the amount due on the said four original notes."
It is contended that this indicated that the debt only, and not the lien, was extended by that agreement. The argument is that, under the statute, the extension contract must expressly include the lien, or the lien is not revived or extended. Article 5694, Revised Statutes of 1911, as amended by Acts 1913, c. 123, § 2 (Vernon's Sayles' Ann.Civ.St. 1914, art. 5694), provides that notes evidencing a vendor's lien shall be barred both as to the debt and lien, if suit is not filed for enforcement with four years after maturity. That provision of the statute added nothing new to the former laws of limitation. Long prior to its passage, the courts had uniformly held that a mere vendor's lien, as distinguished from the vendor's superior legal title, expired by limitation with the debt which it secured. That ruling was based upon the proposition that the lien was an incident to the debt and continued only so long as the debt existed. Article 5694 provides that such debts and liens may be extended in the manner pointed out in the next succeeding article. The material provisions of the next article (as amended by Acts 1913, c. 123, § 3 [Vernon's Sayles' Ann.Civ.St. 1914, art. 5695]) are as follows:
"When the date of maturity of either debt referred to in either of the foregoing articles is extended, if the contract of extension is signed and acknowledged as provided for in the law relating to the execution of deeds of conveyance by the party or parties obligated to pay such indebtedness as extended and filed for record in the county clerk's office in the county in which the land is situated, the lien shall continue and be in force until four years after maturity of the notes as provided in such extension, the same as in the original contract and the lien shall so continue for any succeeding or additional extension so made and recorded."
Apparently all that is required to revive or extend the lien is a contract reviving or extending the debt. That was done in this case, as is shown in the statement quoted. Our conclusion is that the renewal of the debt, in the absence of something indicating an intention to waive or extend the lien, is sufficient, without an express mention of the lien to also revive the lien. That construction is, we think, supported by the ruling of the Commission of Appeals in Bellamy v. Oklahoma Farm Mortgage Co., 278 S.W. 180, and cases there cited.
The record in this case shows that the debt which formed the subject of the renewal contract was for the purchase money of the 29 acres of land in controversy. As stated in the case cited above, this did not cease to be a debt for purchase money because its collection through judicial proceedings was barred by the lapse of time. The moral obligation to pay the debt continued. Sparks had a right to renew the debt, with all of its legal incidents and characteristics, at any time he saw proper. The *Page 718 statute places no limit of time on the making of such a contract. There is another reason why this lien followed the debt as an incident. If the renewal contract revived and perpetuated an obligation for the purchase money of the land, the law would imply an equitable lien upon the land as an incident to that character of debt which might be foreclosed, as long as the debt was enforceable through judicial proceedings. Ransom v. Brown, 63 Tex. 188; Wilcox v. Bank, 93 Tex. 322, 55 S.W. 317; Clark v. Collins, 76 Tex. 33, 13 S.W. 44.
It is conceded that the judgment rendered in the court below on the renewal contract is excessive in amount. It was for the sum of $750. It should have been for $657.50.
The motion for a rehearing will therefore be granted in part, and the judgment will be reformed as to that amount. In all other respects the motion is overruled.