On Motion for Rehearing.
In appellees’ motion for rehearing one contention is presented which we did not discuss in our original opinion. It is to the effect that appellants’ suit being one for specific performance of an executory contract for the sale- of land the general demurrer was properly sustained because the petition of the appellants affirmatively discloses that they have been guilty of laches as a matter of law. In 'this connection it is asserted that the failure of the Pattersons to pay the purchase money as agreed, together with interest and taxes, precludes their right to seek relief in a court of equity.
We are not in accord with appellees’ contention that this suit is one for the specific performance of the original contract of sale. Under the authorities of this State we think it is settled that a general warranty deed reserving a vendor’s lien securing purchase money is ex-ecutory as between the vendor and vendee only in the sense that the naked title remains in the vendor to be automatically vested in the vendee upon payment of the purchase price and- in all other respects the deed is an executed contract. Humphreys-Mexia Co. et al. v. Gammon et al., 113 Tex. 247, 254 S.W. 296, and authorities therein cited. When the purchase money has been paid the title of the vendee in such deed becomes absolute without any action on the part of the vendor. Carey et al. v. Starr et ux., 93 Tex. 508, 56 S.W. 324. It has also been held by the Supreme Court of this State that upon a tender of the purchase money into court the title of the vendee becomes perfect. Stitzle et ux. v. Evans, 74 Tex. 596, 12 S.W. 326, 327. In the latter case it is said: “Upon payment or tender .of the purchase money in this case, the title of the appellee became perfect. Russell [& Seisfeld] v. Kirkbride, supra [62 Tex. 455]. Nothing remained for the grantors to do to complete it. The contract was not executory on their part.”
Since the appellants have tendered into court the purchase money and such other sums as may be adjudged to be due, it is still our opinion that laches and stale demand do not appear as a matter of law upon the face of appellants’ petition. 21 C.J. 215, par. 213; Riley v. McNamara, 83 Tex. 11, 18 S.W. 141.
The motion for rehearing is overruled.