The notes upon which suit was brought and judgment rendered in favor of Mrs. Sproull, and to obtain payment of which the property was sold under execution, was the same debt that was due the building and loan association under the builder's lien. It was the same debt in different garbs, and was never paid. It is clearly shown by the proof, and it was admitted by appellants in their testimony, that the building and loan association had a valid mechanic's lien on the property to secure the sum of $3000, and this is not questioned in the brief of appellants. It is too late to spring it on a motion for a rehearing.
It is contended, that as the proof showed that Vaughn paid $1650 cash and gave a negotiable promissory note for $1000 for the property, this would not be a payment of such value as would constitute him a purchaser in good faith for value. In the case of Cameron v. Romele, 53 Tex. 238, it is said: "Although it has been held otherwise by many courts, it is now well settled, at least by the weight of more recent decisions, that the giving of a promissory note payable to bearer is as effectual as the payment of the same amount in cash to prove a purchase for value." Following this case, it is said in Dodd v. Gaines,82 Tex. 429, that "a promissory note made in good faith, or the transfer of a negotiable note, is as effectual as the payment of the same amount in cash to prove a purchase for value." In Le Page v. Slade, 79 Tex. 473, it is said: "If the note was negotiable commercial paper, it was a valuable consideration, sufficient in that respect to support the sale." The same doctrine is enunciated in Tillman v. Heller, 78 Tex. 597.
It is urged that Mrs. Watkins was a necessary party to the foreclosure of the lien upon her homestead, no matter whether it was in the form of a vendor's lien or otherwise. At the time of the creation of the debt to the building and loan association, the place had not become a homestead. The lien attached before the homestead character, and the assignment of appellants is not well taken.
There is but one plausible theory, and that is not presented by appellants, upon which any argument could be predicated; and that is upon the ground that the land, being the separate property of Mrs. *Page 432 Watkins, remained her separate estate through the several mutations of the lien, and that therefore she was a necessary party to the foreclosure proceedings. If this position should be well founded, still the result would be the same, as the evidence shows that he was an innocent purchaser for value, without notice, and, taking the record, there was nothing to indicate that Mrs. Watkins had any interest in the land after she conveyed it to the building and loan association. The fact that she signed the last note with her husband did not show that she had any interest in the land. On the question of notice, in addition to the authorities cited in our former opinion, we would call attention to Ranney v. Miller, 51 Tex. 269, and Alstin v. Cundiff, 52 Tex. 453, where the subject is discussed.
It is contended that the attorney of Vaughn, having been the attorney of the building and loan association when the deed was executed, had notice that the deed from appellants to the association was in reality a mortgage, and thus through him notice was brought home to Vaughn. But the attorney swore positively that he drew the deed and thought it was a bona fide conveyance of the property, and had no notice whatever that there had been any promise to reconvey the property. We doubt that the possession of appellants was sufficient to put Vaughn upon inquiry, as is intimated in our former opinion, for the reason that the record indicated that they were in possession by virtue of the deed to E.L. Watkins in which the vendor's lien had been reserved. Vaughn bought from Mrs. Sproull a few days after the foreclosure sale; and about the time of his purchase, when he spoke of buying or of having bought the place, no claim whatever was set up by appellants.
Except so far as modified by this opinion, we adhere to our former opinion and the motion for rehearing is overruled.
Overruled.
JAMES, Chief Justice, did not sit in this case.