On Motion for Rehearing.
The appellees, upon motion for rehearing, take us severely to task because we examined their brief, when they “only” authorized us to do so in ’ case we refused to strike out the appellant’s assignments of error. We must plead guilty to having peeped under the “only” and looked into appellees’ brief, *1148as well as to the appellant’s assignments of error. We thén thought from thé reeord there was fundamental error, and yet think so; and hence did not strike out the assignments of error. Rules 23, 24, and 29 for Courts of Civil Appeals (142 S. Wi xii, xiii) permit fundamental error to be assigned whether presented in the motion for new trial or not; and, when we found fundamental error, we saw no reason for striking out the assignments, but what we said was to again emphasize the rule which requires reference to be made to the grounds of the motion for new trial upon which it is based. Waiving the question as to whether there was error assigned which was not fundamental, we proceeded to consider the case on what we conceived to be the rights of the parties, as shown by the record.
[10] It is urged that appellant, Davidson, himself participated in the fraud, and placed himself in a position that precludes the recovery by him upon the indemnity contract, for. the reason that, while McKinley tried to get him to surrender the release, appellant, .under the advice of attorneys, refused to do so. It is quite clear that Davidson could not claim under the release procured by the fraud of Hawkins and McKinley, and if he tried to do so, if there was nothing else, that alone would have prevented his setting up the release of such lien procured by the unlawful acts of McKinley and Hawkins. Neither can Thompson and McKinley in this case set up such unlawful acts on the part-of McKinley and Hawkins or Davidson as a defense to the lawful contract. Their acts as set up herein show, in fact, no release of the vendor’s lien. Thompson cannot plead such acts if fraudulent, as a satisfaction of the vendor’s lien, unless he also shows that thereby he was induced to change his eondition for the worse, or that he was in some way injured thereby. This he does not do, but himself tries to defeat a lawful contract by the unlawful acts of McKinley. Lemmon v. Hanley, 28 Tex. 225; Bremond v. McLean, 45 Tex. 10 ; Read v. Chambers, 45 S. W. 742.
It is admitted practically in this ease that Davidson had nothing to do with getting the release from Hawkins. After he had been induced to believe his land was released, then McKinley tried to get him to surrender the release. Why should Davidson do so? If the note held by the bank was a lien, its foreclosure was the necessary sequence. It was his right and certainly the only prudent course for him to pursue after having been placed in the position he was by. the wrongful acts of the parties to take the judgment of the court. The attorneys correctly advised him under the circumstances not to voluntarily surrender the release. If the lien still existed, the bank could foreclose, and he could pay off the judgment as well as the note. If the appellees’ (McKinley and Thompson) consciences had become quickened. they could have paid off the note, and made effective the release. If appellant had voluntarily surrendered the release, appellee Thompson would be contending as the appel-lees are now doing, that the lien was released, and ■ therefore he would not be liable under the contract for indemnity, with the added ground that Davidson had voluntarily canceled the release which had been procured for him. Appellant simply acted under the prudent advice of his attorneys to let a court of competent jurisdiction decide whether the bank had lost its lien under the circumstances by a failure to record a transfer of the lien. ■ In fact, it was all he could do. He fought the case on the ground that the bank had been negligent in not procuring a transfer of the lien, and in not having placed it of record. It does not lie in the mouth of McKinley and Thompson to say he ought not to have done so and then on the very ground upon which he tried to protect them fight their own obligation to pay the note, and to extinguish the lien. The wrong he committed,- if any, was in not making Mc-Kiniey and Thompson parties to the cross-petition over against them in that suit, and to pray for a judgment on his indemnity contract. 1-Ie could certainly have then recovered judgment against them in that court, and no good reason is shown why he should not in this action. The appellees claim because Thompson is a surety on the contract that he cannot be held liable because of the negligence of the bank. He bound himself to pay off the vendor’s lien note if McKinley did not get the release and discharge the vendor’s lien. This we have seen McKinley did not do. Now, Davidson was not negligent, and did all he could to have the lien discharged, even to the extent of invoking in the courts the bank’s negligence ' as being a discharger of the lien. What more could' Thompson ask at his hands? If Davidson had refused to act, and had refused to compel the bank to establish its right to the lien in the courts, there might be some plausibility in Thompson’s contention that he was discharged. In other words, if Davidson had voluntarily delivered up and canceled the. release as McKinley tried to get him to do, after he had delivered it to Davidson, then Thompson might, with some degree of justice, insist such act discharged him, but now, after Davidson had done what he could to protect Thompson, he is met by Thompson with the charge of fraud in trying to do what he now contends discharged the lien, and he is therefore released from his obligation. The law of innocent purchaser for value without notice cannot in any sense apply to the discharge of Thompson in this case, as the facts clearly show he was not such. The only question in so far as he is concerned is: Was the lien discharged? That it was not we think *1149has been clearly demonstrated In the opinion filed in this ease. If the hank under the-rules of law and equity still had its lien on the land as between the parties thereto, Thompson was bound by his contract of indemnity. He was not a party to the contract creating the lien, but only a .party to the contract of indemnity. Only the acts of Davidson could affect his right, and, he having failed in our judgment to show that the parties to the lien contract and the lien on Davidson’s land were released,, then his obligation becomes clear to pay Davidson the sum • which he, Davidson, had to pay to clear up his land. In. Thompson’s pleadings he alleges no failure and proves none, on the part of Davidson which released him from his obligation. He does allege a postponement of the' payment of the vendor’s lien note, but he does not allege that there was any valid agreement or an agreement of any sort to postpone its payment.
[11] A mere postponement or failure to sue does not discharge a surety without a valid agreement to do so. Article 3811, Sayles’ Civil Statutes; National Bank of Commerce v. D. Gilvin, 152 S. W. 652, 'decided by this court, December 14, 1912, No. 300, and authorities therein cited. In this case Davidson was not the owner of the vendor’s lien note, and had no control- over it. There was no liability on the indemnity contract' until Davidson had to pay off the vendor’s lien note.
The fact that this is the second appeal, the change of the views of this court on this appeal from its former views, as expressed in the opinion handed down on the first appeal, and on account of the earnestness ap-pellees have manifested, induced us to go into a more extended analysis of the case and the reasons upon which the opinion is based than we would have done otherwise, or than the importance of the questions involved and the case itself requires.
We therefore overrule the motion for rehearing.