On Motion for Rehearing.
On motion for rehearing, our attention is called to expressions used by us in the original opinion, which we think should be stricken, since they are susceptible to the construction, as contended by defendants, that our conclusions were based upon a lack of pleadings by them of waiver and estoppel as against the plaintiff.
We said in the original opinion: “There was no plea of an offer to make payment or to otherwise do equity in the premises, nor did they plead that plaintiff was estopped by any former acts or conduct to rely upon his remedy to recover the land for the failure of the Youngs to pay the purchase money note.”
That part of the above-quoted portion of the opinion which refers to a failure to plead waiver and estoppel, and any other expression in the opinion which may be construed as such, are withdrawn by us.
We are now fully convinced that the plea of not guilty interposed by defendants as against plaintiffs petition in trespass to try title would entitle them to prove any facts that existed to show that plaintiff had waived or was estopped to assert his rights for rescission of the original executory contract of sale of which his note was a part of the purchase money. 41 Tex.Jur., sect. 139, p. 633, and cases there cited.
It is earnestly insisted by defendants in their motion that the long standing of the note and lien, the numerous maturities and extensions by previous owners, and the purchase by plaintiff after maturity, were circumstances tending to show that he had waived his right of rescission and was estopped to assert that right at the time he did so. Upon the authorities cited in the original opinion, we still think that there was no testimony of probative force adduced tending to show that plaintiff had done any of the things relied upon by defendants to show waiver or estoppel. We have not seen any case which supports the theory contended for in the motion that plaintiff who purchased the note would be bound by acts of his predecessors in title to the note and lien. There' was absolutely . no evidence that any one of the previous owners had ever obligated himself not to rely upon his rights under the executory contract. The most that could be said of their acts is that they received interest, partial payments, renewed and extended the maturity from time to time. In the Amuny v. Seaboard Bank case, supra, it was held that such acts did not evidence any intention not to enforce the contract. Certainly, if those acts would not have constituted a waiver or estoppel as against plaintiff’s predecessors, it cannot now be said to have that effect upon plaintiff who purchased from them. We think there was no evidence before the court raising an issue of waiver or estop-pel; therefore, nothing was presented on that point for determination by the jury.
In all other respects we adhere to our conclusions as reflected in the original opinion, and overrule the motion for rehearing.