ON MOTION FOR REHEARING
The Appellants urge in their motion for rehearing that the case has been decided on a new and different theory than the one presented by the parties and that our opinion “amounts to appeal by ambush.”
When we look at the issues presented to the trial Court, we find paragraph VII of the Plaintiff’s Original Petition alleges in part:
Plaintiff is the legal and equitable holder and owner of said note and indebtedness, and though action on said note would under normal circumstances be barred by the Statute of Limitations, said note and the Deed of Trust securing same remain in full force and effect as the result of the conveyance or attempted conveyance by the said PHILIP WALIZER to Plaintiff of the property described herein at a time before limitations had run, * * *.
In the Plaintiff’s Motion for Summary Judgment, the following is set forth:
When Mr. Walizer attempted to convey the property to Plaintiff by Quitclaim Deed at a time when the Deed of Trust previously given to her was of record and alive, he may have had no interest to convey because of the Sheriff’s sale, but the Deed nonetheless had the effect of keeping alive the Deed of Trust lien as against any intervening lienholder or purchaser for value. Silliman v. Gammage, 55 Tex. 365 (Tex.Sup.Ct., 1881); King, et al. v. Brown, [80 Tex. 276, 16 S.W. 39 (Tex.Sup.Ct., 1891); Willis v. Heath, 18 S.W. 801 (Tex.Sup.Ct., 1891); North Texas Building & Loan Ass’n. v. Overton, [126 Tex. 104], 86 S.W.2d 738 (Tex.Comm. App., 1935); First National Bank in Wellington v. McClellan, 105 S.W.2d 394 (Tex. Civ.App., Amarillo, 1937, no writ hist.).
The case which we relied most heavily upon, North Texas Building & Loan Ass’n. v. Overton, 126 Tex. 104, 86 S.W.2d 738 (1935), is a case cited to the trial Court in the above motion filed in January, 1978. First Nat. Bank in Wellington v. McClellan, 105 S.W.2d 394 (Tex.Civ.App.—Amarillo 1937, no writ), which we cited in our opinion was also cited to the trial Court. Since we reached the same results as the trial Court based upon the quoted allegations and cited cases, we cannot agree that the case has been decided on a new theory.
We recognize that Appellee did contend in this Court that the quitclaim deed had the effect of extending and renewing the deed of trust lien. We have rejected that theory. While Appellee may not have contended that the quitclaim deed had the same effect as a foreclosure, she did contend that the deed kept the lien alive and relied upon the cases which support that position.
We have considered the five assignments of error in the Motion for Rehearing and they are all overruled.
PRESLAR, C. J., not sitting.