We have considered carefully the statement ■ of the facts proven upon the trial, and have arrived at the ■conclusion that the evidence does not support the judgment «of the court.
*99The proof conclusively establishes these facts: That upon the sale of the land by Pannill and wife to Mrs. Smith, no money whatever was paid. Pannill & Co. were then indebted to Smith for borrowed money, and he held their note for it, $500 currency, and bearing one and one-half per cent, a month interest, dated May 10,1873. They were also indebted to him at the same time in other sums, which at that time, with the note, amounted to about $800, but counting up the interest made up the note which is here sued on. That it was agreed that this debt should go into and bo received as part payment for the land, and the balance, about $1,700, was to be paid by Smith in a few days. Neither the $500 note nor the accounts were then delivered to ¡¡Pannill, nor was any part of the purchase money paid. In March, 1871, Smith wrote to Pannill, desiring him to sell his place to some one else, that he was in debt, and stating: “What you are owing me I will take property at Ennis, if it suits you, at reasonable price.” •
Cn the 19th May, 1871, he wrote again, explaining his embarrassments, and concluded : “I only loan you the money for an accommodation. I had rather you to keep the place. Give me a lien on it for what money I loaned you. I dill be willing to take it without any interest.”
On the 8th June, 1871, the transaction in relation to the land was canceled, and Smith and wife reconveyed the land to Mrs. Pannill.
Not till over a year thereafter was the note sued on given; then there was a settlement between Smith and Pannill. The $500 note and the accounts, adding the interest upon them, were given up to Pannill, and Pannill executed the note sued on to Smith for the amount of that indebtedness of Pannill & Co.
Although Smith says that he regarded this transaction as creating a lien upon the land for the payment of the nóte, it is manifest that his opinion upon the subject is erroneous. The proof is very positive that at the time of the reconveyance to Mrs. Pannill, there was no agreement or understanding that the Pannill debt should be a lien upon the land; *100that the transaction was simply a cancellation of the trade that had been made when the land was conveyed to Mrs. Smith, and the old indebtedness of Pannill & Co. was left standing just as it was before the first conveyance, and remaiued, in fact, unsettled till the execution of the note sued on. There was not only no agreement or understanding that this debt should be a lien upon the land, but if there had been it would have been ineffectual as making a mortgage by parol. The vendor’s lien is not the creature of contract; it arises by operation of law, and exists only where the purchase money agreed to be paid remains unpaid, and the lien has not been waived. Malone v. Kaufman, 38 Tex., 457; Flanagan v. Wynn, 25 Tex., 778.
[Opinion delivered April 26, 1880.]It is unnecessary to notice the other errors assigned. The rejection of the testimony, in the view we take of the proof, was not a material error.
Because the judgment of the court is against the evidence, the judgment will be reversed and the case remanded, and we so award.
Reversed and remanded.