On Motion for Rehearing.
Since our opinion of December 14 and appellant’s motion for rehearing we have given further study to this record. As part of their motion for summary judgment appellees filed in the record a verified motion in which they asserted: “There is no genuine issue as to any material fact involved in this suit * * * ” The only other place where we find they asserted there was a fact issue is in their pleading replying to appellant’s Motion for Summary Judgment. There they say: “There is a disputed issue of fact in that these defendants say they are not personally liable for payment of the note upon which plaintiff’s cause of action is based * * * ” However, in the same sentence they say * * “ * * * and plaintiff does not allege that they were personally liable for payment of such note.” It is true that plaintiff below did not allege appellees are personally liable for payment of the note in controversy, such a question was not before the trial court and does not constitute either an issue of fact or law in this case.
Rule 434, V.A.T.R. provides in part, as follows:
“When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it *357is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial.”
Believing the record does not show a necessity that some matter of fact be ascertained, the suit being merely for foreclosure without any requests for damages and the matter to be decreed not being uncertain we believe it is incumbent upon us to reverse the judgment of the trial court with instructions that appellant is entitled to foreclose its asserted lien, the judgment we believe the trial court should have rendered from the record before it. Tobin v. Garcia, Tex., 316 S.W.2d 396.
Accordingly, the judgment of the trial court is reversed and rendered that ap-pellees at the time they purchased the property in question had constructive notice of appellant’s lien, which it has the right to foreclose.