The first error assigned is the action of the court in sustaining this demurrer.
The special exceptions relate to mere matter of form, and we do not think are well taken.
The amended petition is certainly very loosely drawn. It might be very much improved both in definiteness and fullness of statement; but it contains the averments of which we have given the substance, and these we think set out a good cause of action and pray the appropriate relief. Carter v. Attaway, 46 Tex., 109. We are of opinion that the court erred in sustaining the defendants’ demurrer, and for this error the judgment must be reversed.
As the case will be remanded for a new trial, and as it has already been twice here on appeal, and it is fit there should be some time an end of the controversy, we think it proper that we should indicate our opinion briefly upon the most material questions of law involved in it and which are likely to arise upon the trial. These questions have been exhibited in the voluminous pleadings in the case, and have been presented to us in the assignments of error, in the briefs of counsel and in the argument before us.
1. If, then, when Johnson instituted his suit against Keys upon the purchase money note and for the foreclosure of its lien, the defendants had no legal title to the land of which Johnson had any knowledge,.actual or constructive, and that *76the note had a lien, and Attaway purchased the land and paid for it, he would be entitled to a recovery of the land in this suit.
2. If the defendants purchased the land with knowledge that the purchase money had not been paid, the land in their hands would be subject to a lien for its payment.
3. If Attaway purchased the land under the Johnson judgment, he was thereby subrogated to whatever rights Johnson had at the institution of the suit, for the enforcement of his lien against it, and if in fact there was a lien for the unpaid purchase money, with knowledge of which defendants were chargeable, he would be entitled to enforce the same against the land claimed by defendants to thé extent of the money he had paid for the land and interest.
4. If the note upon which the Johnson judgment is based was given for this tract and a larger tract, Attaway would only be entitled to hold the land claimed by defendants bound for such proportion of the money as he had paid and interest, as the value of their land bore to the value of the whole tract. That proportion we think could be ascertained by the court or jury trying the cause, or a resale of the whole land might be decreed upon making proper parties. Peters v. Clements, decided at this term.
If, before the assignment of the purchase money note by Mr. Easley to Johnson, Mrs. Easley, for a valuable consideration, agreed with Garrison, by parol or otherwise, to waive the lien of the note upon the land claimed by Garrison, or Garrison and Carter, then the defendants would hold the land free of any lien, and this whether Johnson knew of said agreement or not, unless, indeed, the lien was reserved specially in the deed from Mrs. Easley to Keys, in which case knowledge of the release must be brought home to Johnson. Hood v. De Cordova, 17 Wall., 1.
But if, when Johnson traded with Mrs. Easley for the note, he did so under the belief that it had a valid subsisting lien upon the land, and that Garrison knew this and stood by, or encouraged him to trade for the note, without disclosing to him the fact of such release, Garrison would be *77estopped from setting up such release of the lien against Johnson or Attaway. Burleson v. Burleson, 28 Tex., 415.
[Opinion delivered November 29, 1879.]5. We do not think the point made upon the certificate of the officer taking the acknowledgment of the deed from Keys to Garrison, in writing 1868 for 1867, where the mistake is corrected by the statement that the acknowledgment is of the above deed, appended to the deed itself, is worthy of serious consideration. Nor do we think that the mistake of “ Joseph Easley ” for “ Joseph English ” in that deed would render it void for uncertainty, when by many other calls in the deed the land conveyed can be identified. These questions seem to have been decided upon the former appeal. Kingston v. Pickins, 46 Tex., 101; Berry v. Wright, 14 Tex., 273.
It will of course be necessary to amend the pleadings in this case in accordance with the views we have expressed, and specifically asking the desired relief.
We conclude that the judgment be reversed and the case remanded.
Reversed and remanded.