On Motion for Rehearing.
The appellee, in his motion for rehearing, upon the question of priority of liens involved in this case, insists that we have overruled the holding of the Supreme Court of the state in the case of Senter v. Lambeth, 59 Tex. 260.
The higher court held in that case that the equitable vendor’s lien which attaches to realty by virtue of the sale itself, contradistinguished from a contractual lien, would prevail against a judgment lien where notice of the unrecorded equitable lien was given before the sale. The Supreme Court, in the course of that opinion, said; “The evidence of the vendor’s lien in this case was not recorded nor was it in the form in which it existed (being the lien springing by operation of law out of the transaction between the parties) susceptible of registration.” The other cases cited by appellee in reality, upon a careful reading of the facts, announced the same principle which, with reference to equitable interests in lands not susceptible of registration, has been the settled law of this state for many decades. This doctrine is not. contravened by us; this is a contractual vendor’s lien expressed and reserved in the deed and recognized in the notes, and which character of lien is regarded, especially with reference to the assignment of same, in the nature of a mortgage, susceptible of registration, with the same penalty resultant from a lack of registration as of other legal interests, when, as to an opposition claimant of a legal interest or lien, notice or a valuable consideration is not shown to exist. It is not to be overlooked, and the original opinion in this case was intended to be equally bottomed on that fact, that the deed from Dillard to Faulk, through which Belt claims his vendor’s lien, although executed, was not recorded until after the registration of the abstract *891of judgment; Paulk could not have prevailed with his title, being the vendee of Dillard, without imputing notice to the judgment lien holder at the time the latter abstracted his judgment; and, if the holder of the unrecorded title would be cut off, why not the holder of an unrecorded express lien, dependent upon said title, when it also is neither recorded nor notice of same imputed to the creditor when the latter’s lien was fixed? It was the duty of Belt to see that this deed, by virtue of which he held the vendor’s lien, was upon the record or that the opposition claimant, when he recorded his judgment, had notice of the Paulk deed or of the vendor’s lien in order to eliminate Bowles, the holder of said judgment. The legal literature of appellee, the earnestness and ability of counsel, and the luxuriance of authorities presented on rehearing, which we think inapplicable upon the particular point, impel us to a reiteration of what we deem to be a plain principle of law.
The appellee again vigorously insists we have overruled numerous decisions of the Courts of Civil Appeals, and some decisions announced by the Supreme Court, upon the question of the finality of a judgment on account of the lack of a literal and express recitation finding against a cross-action injected into that case and which became necessary to be reviewed in this record. Every decision cited by appellee involving an affirmative, adverse action was reviewed by us, although not mentioned in our original opinion; and we believe we are not in conflict, even with the spirit of the principles announced by the Supreme Court, and we thought then and believe now that an attempted systematic analysis of the conceptions of the higher court, expressed and implied in these holdings, would be impracticable; and that an indulgence of legal dialectics with an almost interminable review of the numerous Court of Civil Appeals decisions, upon the matter of final judgments, would be equally useless and unavailable.
We insist that the particular judgment reviewed herein, with the particular record, giving an exposition of the meaning of said judgment, has never been passed upon by any Court of Civil Appeals, and a review of this record strengthens, rather than diminishes, our convictions on this subject, and the motion for rehearing is overruled.