On Second Motion for Rehearing
In their original briefs both appellant and appellees argued fully the question of the right of Cora Stallings, Independent Executrix, to rescind the contract of sale because appellees had not finished payment of the purchase price. However little or no attention was paid in the briefs of the parties to the question whether appellees, before being awarded the legal title, should be required to tender the balance of the purchase price. The latter question has received full treatment for the first time in appellant’s second motion for rehearing and appellee’s reply brief to said second motion.
In his second motion for rehearing appellant has reminded us of Article 1290, Vernon’s Ann.Civ.St., which provides as follows:
“All alienations of real estate, made by any person purporting to pass or assure a greater right or estate than such person may lawfully pass or assure, shall operate as alienations of so much of the right and estate in such lands, tenements or hereditaments as such person might lawfully convey;”.
The statute has been applied in a number of cases. Evans v. Graves, Tex.Civ.App., 166 S.W.2d 955; Belote v. Brown Securities Corp., Tex.Civ.App., 129 S.W.2d 395; Rae v. Baker, Tex.Civ.App., 38 S.W.2d 366; Gibbs v. Barkley, Tex.Com.App., 242 S.W. 462; Kennedy v. Pearson, Tex.Civ.App., 109 S.W. 280, 283.
The deed from Cora Stallings, Independent Executrix, to appellant Farrow purported to pass full and complete fee simple title. We think we correctly held that Cora Stallings could not convey full and complete title to Farrow because she had no right to rescind the contract of sale with appellees. However we must hold in the light of the above quoted statute that she did convey to Farrow by her limited warranty deed whatever rights she may have had in the property. The rights she still had when she executed the deed and! which she conveyed to Farrow were her *480security interest in the payment of the balance of the purchase price.
It follows that we were mistaken when we held in our opinion on first motion for rehearing that if Cora Stallings had been a party to the suit, she might have required a tender of the balance of the purchase price, but that appellant Farrow was not in position to so demand. We have concluded that appellees are entitled to judgment for title and possession of the land involved in the first count of apellees’ petition only on condition that appellees tender to appellant Farrow the balance due on the purchase price.
In Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509, our Supreme Court, taking into consideration the particular facts shown by the record, held that when a seller rejected a tender of an installment payment, no further tenders were required by the buyer. However the judgment was reversed and remanded with instructions to the trial court to require the buyer to pay the balance due on the purchase price as a condition to be met before rendering judgment for the buyer.
In the case now before us appellant’s ■second motion for rehearing is sustained in part and overruled in part as follows:
(1) The judgment in favor of appellees John Sims and wife Eula Sims for title and possession of the real property described in the first count is reversed and set aside with these instructions to the trial court: (a) if said appellees tender into ■court for the benefit of appellant Farrow the balance due on the purchase price of the property, judgment shall be entered in favor of appellees for title and possession ■of the property; but (b) if said appellees fail and refuse to tender into court the balance due on said purchase price, then judgment shall be rendered in favor of appellant Farrow that appellees take nothing by their suit.
(2) The judgment in favor of appellees Eula Sims, joined by her husband John Sims, Rosa Pendleton, joined by her husband Tom Pendleton, Lucinda Lemmons, and Iva Prothro for title and possession of the real property described in the second count is affirmed.