for rehearing.
Appellant asks the court to grant a rehearing in this cause. To grant a rehearing that the court may re-examine the grounds of its decision, could not, it is believed, work any possible injury to any one.
*42Under such a view of the case, we ask the leave of the court to submit such reasons as have suggested themselves why a rehearing should be granted. If it shall he found upon close examination that the equities of the case have not been reached, or that substantial justice has not been done, then of course a rehearing should he granted.
It is submitted as a general principle that whatever equities develop themselves or arise out of the facts alleged and proven, are the real equities in a case. (Fonblanque’o Eq., §§ 2 and 3; 1 Story’s Eq., §§ 26-32.)
The form and manner in which facts are alleged, it is believed, are not so material as that the facts themselves shall be alleged.
If the facts show equities, the relief they call for, it is submitted, should he granted. (Wells v. Fairbank, 5 Tex., 585; Horne v. Black, 24 Tex., 293.)
Hor would the fact — as may or may not have been the case with appellant in tMs cause — that a party mistook his rights, preclude the court from granting the relief the averments and proof showed he was entitled to. (Hipp v. Hutchett, 4 Tex., 24; Spann v. Sterns, 18 Tex., 570; Smith v. Clopton, 4 Tex., 114; Smith v. Corcoran, 7 La., 52; Trammell v. Watson, 25 Tex. Supp., 216.)
In this case appellant avers that the two Holliman notes he holds were given for part of the purchase-money of the land described in the pleadings; that said notes belong to Mm and are unpaid, and that he has a vendor’s lien upon the land in question to secure their payment; and he prayed for “general and equitable relief in the entire premises.” Under tMs prayer, it is submitted, the court would have power to grant full relief and all the relief the equities in the case called for. (Kelly v. Payne, 18 Ala., 371; Bourke v. Vanderlip, 22 Tex., 223; Filkin v. Ferris, 18 Barb., 581; Texas v. Hardenberg, 10 Wallace, 86, 89.)
Under tMs prayer, being one for general relief, the court might not'only grant full relief, but different relief. Where *43a party mistook the law and his rights under it, and prayed for particular relief that could not be granted, and also prayed for general relief, it is believed the court could refuse the particular relief prayed for, and, under the prayer for general relief, could grant the relief the party was entitled to, though that relief might be different from the relief prayed for. (1 Danl. Ch. Pl. & Prac., p. 437; Bailey v. Burton, 8 Wend., 353; Kelley v. Payne, 18 Ala., 371; Hiem v Mill, 13 Ves., 119; 17 La. Ann., 37; Lingan v. Henderson, 1 Bland., (Md.,) 251; Wiswell v. 1st Cong’l Church, 14 Ohio State, 31.)
Moreover, in equity, it is conceived, the rule of pleading applicable to the defendant’s answer is less strict than that which governs the plaintiff in framing his bill. (Story’s Eq. Plead;, § 255; Crain v. Barnes et al., 1 Md. Chancery, (Johns.,) 155-7; Ory v. Winter, 4 La.; (Martin,) N. S., 279 to 283; Cunningham v. Wheatly, 21 Tex., 185.)
That the court below erred in refusing to give the following charge asked by appellant:
“ In the event the jury should find for the plaintiff', then they will further find whether the two notes given in evidence by Ellis, signed by Holliman, were executed by Howell Holliman in part payment of the purchase-money of the land described in plaintiff’s petition, and by the mutual agreement of said Holliman, Kirksey, and Ellis, were exchanged for the Kirksey notes previously in the hands of Ellis as the original vendor of said land.”
The refusal of the court to give this charge took away from the jury the consideration of the appellant’s rights, and put it out of the power of the court to decree upon the verdict the relief appellant was entitled to.
If this charge had been given, it is assumed — for the proof abundantly warrants the assumption — that the jury would have found affirmatively that the two Holliman notes owned by appellant were unpaid, and were given in part payment of the purchase-money of the land in controversy; and then upon that verdict the court could have decreed full equitable *44relief to both appellant and appellee, and decreed the land to be sold and the proceeds of the sale divided pro rata between appellant and appellee. The propriety of giving this charge is particularly enhanced when we consider the nature of the plaintiff’s action, and especially the averments of his last amendment. (Smithwick v. Andrews, 24 Tex., 494; 17 Tex., 558, 559; Dogget v. Rankin, 31 Cal., 326-328; Gilkey v. Peeler, 22 Tex., 669; Chamblee v. Tarbox, 27 Tex., 146, 147.) The verdict of the jury is erroneous, because it is not responsive to the whole of the case made by the pleadings and the proof, but only embraces the rights of the appellee, and does not embrace or respond to the rights of the appellant.
That the verdict of the jury would have been different had the above charge been given, is manifest from the verdict itself, which is as follows: * * * * *
“ We the jury find that the note sued on was given in part for the purchase-money of the land described in the plaintiff’s petition, and that the plaintiff’ has a vendor’s lien thereon”— evidently implying under the case made that appellant’s two Holliman notes were given for the unpaid balance of the purchase-money.
It may be well enough now to look a little closely into the reason assigned by the court below for refusing the charge asked. The reason assigned is, “because the charge is not applicable to the case.” Let us see how well founded that reason is. If a party mistakes the law and his rights under it, and states his rights in the form suggested by that mistake, it is submitted that the court would not be precluded by the form in which his rights or the facts upon which they rest were stated, from granting the relief the facts intrinsically and inherently entitled him to.
The defendant’s answer was not excepted to by the plaintiff’; and his proof as to the said Holliman notes having been given as substitutes for the original notes of Kirksey, (Ellis’s immediate vendee, Holliman being his sub-vendee with notice,) was in no wise objected to. And under such circum *45stances, it would seem, defendant was entitled to particular liberality, when it was apparent the ends of justice required it. (18 Barb., 581.)
The insufficiency of the reason assigned, it is believed, will be more manifest upon taking into consideration the fact that the court below admitted appellant’s evidence to establish his rights as alleged, and then refused to charge the law applicable to the facts he had been permitted to prove.
Appellant’s equities existed and were not affected or changed by the purchase from Pollard. "Whatever those equities were before the purchase, they remained afterwards. That before the purchase from Pollard appellant’s right or equitable ownership of the land in question was the right to subject the land to the payment of his two notes, (waiving the doctrine of superior right in Ellis as original unpaid vendor,) if the land should sell for enough to pay all three notes; and if not for enough to pay all of them, then for Ms pro rata share of the purchase-money. Before the purchase from Pollard the appellant had an equitable interest in the land, to secure the payment of his two Holliman notes, and appellee had an equitable interest in the land to secure the payment of his note, while Pollard had the naked legal title. After the purchase from Pollard, appellant had the legal title acquired from Pollard, and the equitable right to have his two notes paid out of the land; and the appellee had the equitable right to have his note paid out of said land. That appellant’s equities were not affected by the purchase from Pollard will be more manifest from a wider view of the principle stated. Suppose appellant before his pinchase from Pollard had transferred his two Holliman notes to a third party: would not such third party have had the right after the pinchase from Pollard to enforce Ms vendor’s lien against the land and have it sold for the payment of his two notes? If he would have that right, upon what would such right rest? Would it not be because the vendor’s lien was an incident to the note to secure its payment, and followed it into whosesoever hands it *46went ? Would not that incident attach to the notes and follow the ownership whether in one person or another? The ownership being in appellant, what good reason can be given why the incident should not attach to them in his hands as against other outstanding equal liens or equities, whether he be dual or single ? (Holloman v. White, 41 Tex., 62; Jackson v. Hill, 39 Tex., 493.)