On Motion for Rehearing.
Appellant has filed a motion for rehearing herein in which she strenuously insists that we were in error in not rendering judgment in her favor upon her motion for summary judgment which was overruled by the trial court.
Under all the facts herein, we have jurisdiction to reverse and render an order of the trial court refusing a motion for summary judgment where a final judgment has been rendered. Gulf, Colorado & Sante Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492; Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396.
We have concluded that appellant’s contention is well taken and that judgment should have been rendered in her favor, and the cause should not have been remanded for a new trial.
The record shows that appellees were placed in possession of the property involved by the warranty deed executed by appellant conveying the property to ap-pellees in consideration of their taking care of her for the rest of her life. Appellant retained a vendor’s lien to guarantee that this consideration would be performed. Ap-pellees moved into appellant’s home and began caring for her as was required by the deed. After two months, they learned that appellant had previously conveyed her home to her son Roman, and for this reason decided appellant had no title to the land, and so informed appellant and announced that they were abandoning their agreement to care for her. Appellant induced appellees to remain with her on a promise that she would pay them for living with her. After seven more months appellees not having been paid, moved out of appellant’s home and left her in full possession of the premises. Thereafter appellees rendered services for appellant, but only as favors, and not in an attempt to pay and perform the contractual consideration provided for in the deed. Thereafter appellant cared for her home, paid the taxes, and kept it up as best she could. After some ten years appellant brought this suit in trespass to try title to her home. Roman Vordenbaum never performed the contractual consideration provided for in his mother’s deed to him of her home. Roman has now deeded the property to his mother and there is no outstanding title in Roman’s name.
The appellees having abandoned their contract to care for appellant, having abandoned their possession of the property and returned the same to appellant, having made no further effort to perform the contractual consideration, and having not even contended that they can now go back and do that which they contracted to do, they have no defense to this suit in trespass to try title. Appellant, by reason of the vendor’s lien expressly retained in the deed, has the superior legal title and is entitled as a matter of law to recover the title and possession of her home. Johnson v. Smith, 115 Tex. 193, 280 S.W.2d 158; Barker v. Temple Lumber Co., 120 Tex. 244, 37 S.W.2d 721; Buckner v. Eubank, Tex.Civ.App., 131 S.W.2d 1099; Hall v. Dallas Joint-Stock Land *931Bank, Tex.Civ.App., 95 S.W.2d 200; Tilley v. Kangerga, 83 S.W.2d 787; Toler v. King, Tex.Civ.App., 11 S.W.2d 360; Lewright v. Reese, Tex.Civ.App., 223 S.W. 270.
Appellees do not contend that they performed their contract, but only that appellant came into court with unclean hands, in that she had no title to her home at the time she conveyed it to them. The evidence shows that appellees were not evicted, nor threatened with eviction. Roman’s title was defeated by reason of his failure to perform a condition precedent set forth in the deed to him, and any defect in appellant’s title is now cured by the deed from Roman to appellant.
Our judgment heretofore entered herein on July 28, 1965, is set aside and judgment here and now rendered reversing the judgment of the trial court dismissing the cause, and rendering judgment in appellant’s favor for the title and possession of her home, described as follows:
All that certain tract and parcel of land, part of the G. Malpaz Survey No. 67, Sec. 3, Subd. No. 10, in Guadalupe County, Texas, South of the G. H. & S. A. Railway, described as follows:
BEGINNING at a stake set in the S line of a 30 foot road; 30 feet from the most southern corner of a 30 foot lot conveyed to Lee Vordenbaum on the 17th day of August 1904, recorded in Vol. 24, pages 245/6 of the Deed Records of Guadalupe County, Texas, and 225 feet NE from the New County Road S of the Railway; THENCE NE 266 feet with line parallel to the S line of the lands of Lee Vordenbaum to a stake; THENCE S 40° E 201 feet to stake; THENCE S 50° W 255 feet to stake which is 225 feet N 50° E fr. the New County Road and 285 feet fr. the most east corner of the acre lot conveyed to the Trustees of the German Meth. E. Church; THENCE N 40° W 207 feet to place of beginning and containing one and one-fifth acres of land.
Being that same tract of land described in deed from Wm. A. Schneider et ux. to W. F. Vordenbaum, dated Nov. 29, 1904, recorded in Vol. 24, pages 370/1 of the Deed Records of Guadalupe County, Texas, and being that same tract of land conveyed by Roman Vordenbaum et ux. to Ernestine Vordenbaum by deed dated June 9, 1939, recorded in Vol. 185, pages 130/1 of the Deed Records of Guadalupe County, Texas, to which deeds and the record thereof reference is here made for descriptive and all pertinent purposes.
Reversed and rendered.