ON MOTION FOR REHEARING
In its Amended Motion for Rehearing appellant says that we were mistaken when we said in our original opinion “* * * at the time of the inception of Alltex’s deed of trust liens the property consisted of four vacant lots.” On rehearing appellant for the first time takes the position that on July 8, 1964 when Alltex advanced money to Merit Homes, Inc., the foundations had already been laid for the four houses, the plumbing had already been roughed in and the improvements had already passed the first FHA inspection. Therefore, according to appellant, Alltex had constructive notice that there might already be materi-almen’s liens against the property.
Appellee in reply to the Amended Motion vigorously denies that there is any evidence to indicate that the lots were any other than vacant lots.
In view of the above newly presented contention of appellant we have again reviewed the record in its entirety. We adhere to the challenged statement.
As we view the record the case was tried, the appeal taken and the briefs of the parties were submitted on the theory that no improvements had been started on the four lots prior to July 8, 1964. We quote from appellant’s own brief:
“Under the terms of each of such contracts, Irving Lumber Company became obligated to construct — through Stage II of FHA inspection — a residential house, furnishing all labor and materials therefor on the city lot designated by Merit Homes, Inc. at the time each contract was made. Each such contract may be identified by the street address of the applicable lot and by the date of its making as follows: * * *
“Although labor and materials were not furnished under those contracts until after July 8, 1964 * * *.
“It is conceded that if Irving Lumber Company’s liens did not have their incep*73tion until labor and materials were actually delivered to the job sites under all contracts, Alltex’s liens are entitled to priority.” *
“Irving Lumber Company’s obligation under each of the contracts was to complete a house through Stage II of FHA Inspection, that is, to construct a ‘shell home’ by building the frame of a house with roof trusses in place and covering the roof framing with plywood.”
“(1) That on or about March 1, 1963, Irving Lumber Company and S & S Construction Company, through its agent, Pres Sanders, entered into a written contract under the terms of which Irving Lumber Company, as contractor, became obligated to erect a ‘shell home’ on lots owned by S & S Construction Company, furnishing all labor and materials necessary to complete the home through Stage II of FHA inspection. * * * Plt’fs Ex.-9.”
“* * * Merit Homes, Inc., by its President, Pres Sanders, accepted the offer of Irving Lumber Company by ordering the construction of ‘shell homes’ and the furnishing of materials therefor on the four lots as to which Irving Lumber Company asserts mechanic’s and ma-terialman’s liens.”
We quote from appellee’s brief:
“There is no evidence that any construction work had commenced, or that any deliveries had been made by Appellant or any other party to any of the four lots in question on July 8, 1964, the date Alltex acquired its deed of trust.”
“ * * * Appellant’s theory that it had a contract which forms the basis of the ‘inception’ of its lien is untenable * * * when (a) no work has been commenced on the real property * *
“ * * * In this case, the owner of the real estate gave a mortgage to the interim lender prior to the time any improvements or work had been commenced on the real estate.”
“ * * * At the time that the deed of trust was given by Merit Homes to All-tex no work had commenced on the four lots in question and Appellant’s claim was not of record. Therefore, there was nothing which would have fairly put All-tex on inquiry whereby Alltex might have discovered the existence of the secretly claimed lien of Irving Lumber Company.”
Appellant filed a reply brief in answer to appellee’s brief but did not challenge the above factual statements of appellee.
The evidence also supports our statement. Plaintiff’s Exhibit No. 9, referred to in appellant’s brief and relied on by appellant as part of its contract, contains this provision:
“March 1, 1963
In accordance with Irving Lumber Company’s quotation dated February 26, 1963, and accepted by S & S Construction Co., Inc., Irving Lumber Company will construct houses to plans and specifications as drawn by Russ Selmer & Associates, entitled ‘Quality Homes’ as ordered by S & S Construction Co., Inc.
It was stipulated that the purchase price of the four lots was $2,650 each, and the finished houses were to be priced between $15,000 and $20,000.
It was also stipulated that the Richardson lot was conveyed to Merit Homes on March 2, 1964, subject to a vendor’s lien, and that the three Garland lots were conveyed to Merit Homes on July 8, 1964; and that out of the money loaned by Alltex on July 8, 1964 part was used by Merit Homes to pay the vendor’s lien against the Richardson lot and part was used to pay the purchase price of the Garland lots.
*74Other portions of the evidence might be cited or quoted in support of our statement, but we shall not further extend this opinion by additional citations or quotations. Suffice it to say we find nothing in the record to cause us to change our statement that the lots in° question were vacant lots on July 8, 1964.
However we need not rest our decision in this case on the question whether construction of improvements had already begun on the lots when Alltex obtained its liens on July 8, 1964. Alltex has already foreclosed its liens, including the vendor’s liens which appellant concedes are superior to its materialmen’s liens. Such foreclosure of the senior vendor’s liens extinguished appellant’s junior materialmen’s liens. It is true that Art. 5459, Vernon’s Ann.Civ.St, provides that liens for material and labor furnished shall attach to the house, building or improvements in preference to any prior lien or mortgage on the land; and that to enforce such material-men’s and laborer’s liens the improvements may be sold separately. Appellant claims that after Alltex’s prior vendor’s liens are satisfied the balance of the money realized at the foreclosure sale should be applied toward payment of Lumber Company’s ma-terialmen’s and laborer’s liens.
We do not agree with appellant for these reasons:
1. Our Supreme Court has held that notwithstanding the statute the improvements are not to be sold separately to satisfy an inferior materialmen’s lien when the improvements are not severable and to sever them would result in serious injury to the real property. In such case the senior vendor’s liens are entitled to priority over materialmen’s liens both as to house and lot. Cameron County Lumber Co. v. Al & Lloyd Parker, Inc., 122 Tex. 487, 62 S.W.2d 63 (1933); Hammann v. H. J. McMullen & Co., 122 Tex. 476, 62 S.W.2d 59 (1933). When the improvements on which the materialmen’s lien is claimed are not severable without harm to the rest of the property, the claimant of the material-men’s lien is not entitled to have the value of the improvements determined, the property sold and the proceeds prorated. C. D. Shamburger Lumber Co. v. Holbert, 34 S.W.2d 614 (Tex.Civ.App., Amarillo 1931, no writ). See also Baker v. Marable, 396 S.W.2d 222 (Tex.Civ.App., El Paso 1965, writ ref’d n.r.e.); Parkdale State Bank v. McCord, 428 S.W.2d 121 (Tex.Civ.App., Corpus Christi 1968, writ ref’d n.r.e.); Vol. XXI Baylor Law Rev., p. 28; 40 Tex.Law Rev., pp. 876-877.
In the case now before us it is obvious that the improvements for which appellant claims a materialmen’s lien cannot be separated and removed from the property without serious harm to the rest of the realty. This is especially true if we were to accept appellant’s present contention (we do not accept appellant’s said contention) that it furnished materials and labor only after the foundation was constructed and the plumbing roughed in. The 'shell house’ constructed by appellant could not be separated from the rest of the improvements without causing a collapse of the house.
2. Another reason: There is no showing that appellant ever attempted to foreclose its materialmen’s liens, or to cause the improvements on which it claims liens to be sold separately; or that it ever sought to protect its inferior and junior liens by offering to pay off Alltex’s senior vendor’s liens prior to foreclosure by the senior lien holder. So far as the record shows appellant stood idly by and allowed Alltex to foreclose its superior vendor’s liens, thus extinguishing all inferior liens. Providence Institution for Savings v. W. J. Sims, 441 S.W.2d 516 (Tex.Sup.1969); Richmond v. Nowlin, 135 S.W.2d 521 (Tex.Civ.App., Amarillo 1940, writ dism’d, jdgmt correct); 39 Tex.Jur.2d 231.
Appellant’s amended motion for rehearing is overruled.
In all instances in this opinion the emphases are ours.