Originally acquiescing with reluctance, I am no longer able to accept this court's construction in this cause of the amended act of 1913 (Acts 33d Leg. Special Session, p. 39, Regular Session, p. 250), now articles 5693 to 5695, inclusive, of Vernon's Sayles' Statutes. I think the purpose of that act evidently, though not as plain as it might easily have been made, was to put an absolute end, at least as against the intervening rights of strangers, to powers of sale, liens, and superior titles in vendors, based on debts barred by the four-year statute of limitations, and to provide that, where the debts as such — that is, as carrying or giving rise to particular liens — are not before lapse of the necessary time to complete the bar expressly renewed by a contract in writing, duly acknowledged and recorded, the liens as incidents thereto cease to longer exist; in other words, the objective, it seems to me, was to henceforth cut off implied renewals of liens as incidents of unspecified obligations, and to require the contract of extension, at any rate as against third parties, to indicate on its face, and so go to record in the office of the clerk of the county where the land lay, just what debts it did purport to extend.
When the entire act is looked to, of which article 5695, quoted in this court's original opinion, is only a part, the purpose suggested seems clear. Article 5695 begins 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," etc.
— there being perforce of this language and in fact but two preceding articles and two kinds of debts mentioned, that is, articles 5693 and 5694 (sections 1 and 2 of the original act), and, first, debts secured by deeds of trust and mortgages; second, those given for purchase money of the land and evidenced by vendor's lien notes or recitations in the conveyances.
Now these foregoing articles in positive terms declare that the liens incident to both these particularly specified classes of debts "shall cease to exist four years after the maturity of the debt secured thereby," the only material proviso being one applicable only to the purchase-money liens, the second class mentioned, in this form: "Provided the lien reserved in such note or notes may *Page 297 be extended as provided in section 5695 o: this chapter."
The contract of extension of "either debt referred to in either of the foregoing articles" provided for in article 5695 clearly if not necessarily, therefore, it seems to me means an express one for specified indebted ness, since in every other contingency by the affirmative terms of those statutes them selves all liens arising out of either class of debts enumerated are declared to be absolutely dead as a consequence of the lapse of four years' time after their maturity dates
Moreover, the words "extended" and "con tract of extension," as used in section or article 5695 appear to refer to a particular something already begun and to imply a continuation of a contract before made.
Another internal evidence that such was the object and effect of the 1913 act is this provision in section 3, now article 5695 there of, which immediately succeeds that part of this article copied above in the majority opinion:
"The date of maturity set forth in the deed of conveyance or deed of trust or mortgage, or the recorded renewal and extension of the same, shall be conclusive evidence of the date of maturity of the indebtedness therein mentioned."
This court, in construing that clause in Barger v. Brubaker,187 S.W., at page 1027 of its opinion, said:
"We think it was the intention of the Legislature, in enacting said article 5695, to enable those who may deal with lands in this state to determine from the date, as shown on the face of the original instrument then under consideration, the due date of a written obligation secured by a lien on land, or to so determine from some written contract entered into between the maker and holder of such obligation, by which said due date had been extended, properly signed, acknowledged, and recorded in the deed records of the county in which said land is situated, and to provide a reliable means by which one dealing with such land may legally presume that the due date shown by such written instrument last recorded is the true date of such obligation. Such statute is a statute of limitation for the protection of those who may deal with lands in this state against undisclosed liens against the same. Such statute has no application to, nor in any manner affects, the fixing of liability of an indorser of a note or other written obligation; the latter being the question presented in the present case."
While that expression may not have been necessary to the determination of the precise question there involved, it seems to have at least put this court on record as holding the same view of this law as is herein sought to be presented.
To now hold that debts and the liens attending them, which are shown only by evidence dehors the record, not by anything appearing in the instruments themselves, to include and secure the balance due on previouly existing obligations, constitute proper renewals and extensions of such original debts and liens is, in effect, it strikes me, to ignore the act of 1913, to affirm that it wrought no change in the law, and to hark back to the old common-law rule prevailing before this legislation was first enacted in its original form in 1905. See General Laws Twenty-Ninth Legislature of 1905, pp. 334, 335.
In this connection it may be well to restate and particularize the pertinent facts here involved. Mrs. Kempner's deed to the land, although dated January 16, 1908, was not recorded until November 21, 1911. Templeman Son's first deed of trust securing their original note, both dated January 14, 1911, the note maturing November 1st of that year, went to record ahead of her deed on January 18, 1911. Their second and third trust deeds, each securing a note of even date with it, and dated, respectively, March 26, 1912, and January 31, 1913, were duly recorded, but neither did either of these instruments, nor any of the notes they secured in terms renew or in any way refer to the former note and lien of January 14, 1911. Likewise their final note and deed of trust of February 5, 1916, neither expressly renewed nor made any mention of this first one, but in terms only renewed and extended the contracts of March 26, 1912, and January 31, 1913. In a word, no one of the three subsequent notes or deeds of trust in terms renewed the one of 1911, nor in any way indicated that any part of the debt it secured was included in any one of them, but, in so far as appeared from its face, each was a new and entirely different contract. The single circumstance then, appearing on this trial otherwise than from the recorded instruments themselves, that a balance of $2,056.62 of this original debt of January 14, 1911, was in fact included, along with other obligations, in each of the succeeding contracts, is left as the foundation for this court's conclusion that the requirements of this amended statute as to extensions were complied with.
No authorities construing the new law are cited other than the recent case of Allison-Richey Gulf Coast Home Co. v. Weider et al. (No. 7847),220 S.W. 392, decided by this court by opinion filed March 4, 1920. But that holding cannot support the one here made for two reasons:
First, the only question determined was that Allison, the original vendee and maker of a lien note he had given his vendor for purchase money on the land, was "the party obligated to pay such indebtedness as extended" in a renewal thereof with its holder, within the meaning of the quoted clause as used in amended article 5695, and not subvendees under Allison who had agreed with *Page 298 him to pay his original indebtedness to his vendor, that is, to quote a sentence from the opinion in that case:
"The proper party to make such extension agreement with the original vendor, or with those who stand in his place, is the one who contracted with him at the creation of the obligation to pay it, and when that has been done, the full requirements of this amended statute have been complied with."
Second, under the facts in that case the contract of extension made by Allison did expressly recite on its face that the debt and accompanying lien it acknowledged was the renewal of the original one he had so executed, the very thing found wholly lacking here as to the original contract of 1911, under which alone appellants claim in this suit.
The rule quoted by this court from Slaughter v. Owens, 60 Tex. 671, and to which it still clings, was the law before we had a statute fixing a definite limitation upon liens; it being held that at that time the vendor's lien existed as its incident by reason of the debt alone, so long as the debt continued to be renewed or was kept in force. This holding was reiterated in Hanrick v. Gurley, 93 Tex. 473, 54 S.W. 347,55 S.W. 119, 56 S.W. 330, but it seems to me this very doctrine was abrogated in 1905 by the statute now under consideration when ten years was first fixed as the limitation period (Acts 29th Leg. 1905, p. 334), that being in the 1913 amendment cut down to four years (Acts 33d Leg. Sp. Sess. p. 39, and Reg. Sess. p. 250), and that at least one of the objects in view was to protect those acquiring interests in lands against undisclosed liens. And, if that was its purpose and effect, it clearly follows that Mrs. Kempner was entitled to recover. Even if her rights are held not to antedate the record of her deed on November 21, 1911, she was then only charged by the prior filing thereof on January 18, 1911, with knowledge of appellant's debt as of date January 14, 1911, and as maturing November 1, 1911, and not with knowledge that it would in the future be legally renewed within four years after its maturity date as thus shown. When it was not expressly so renewed, since Mrs. Kempner's rights intervened at all events from and after the filing of her deed in November, 1911, I think appellants' lien, in so far as she was concerned, died a statutory death four years after maturity of the debt it secured — that is, on November 1, 1915. Cason v. Chambers,62 Tex. 305; Flewellen v. Cochran, 19 Tex. Civ. App. 499, 48 S.W. 39, writ of error denied.
I think the motion for rehearing should have been granted, and the trial court's judgment affirmed. This protest against what was done is earnestly entered.