On Rehearing.
The appellant has made a very able motion for rehearing in this cause. The same has been given most careful attention by this court. A re-examination of the numerous points raised still leaves this court-with the conviction that the appeal in the *240main was properly disposed of by our original opinion. ■ The controlling propositions are given some additional discussion.
The respects wherein the' record upon this appeal differ from those on the former appeal, 'as pointed out by the appellant, are. not believed to be of any controlling importance.
If the contentions'of Wise be correct, then prior to the purchase of the land by him from the trustee in bankruptcy his former relations with Cecil had been changed. Cecil’s five notes to Wise had been discharged in consideration of the latter becoming sole and unconditional owner of the note which had theretofore been held only as collateral security for the five notes.
The trial court found against this contention. The court found that “there was no agreement between Cecil and Wise whereby Wise agreed to cancel the debt and obligation of Cecil to Wise.”
.The court further found that Wise bought the- land “to protect himself” and that with Cecil’s consent Wise used the collateral- note as he did. The amount. of the nóte (unpaid balance) was in round numbers $1,200'. The debt of Cecil owing to Wise for which the $1,200 vendor’s lien nóte was security was in round numbers $1,000. Absent any agreement Wise owned no-part of'the $1,200 note. True' he had the right to collect it but he had no right to, discharge the note for less than the full amount due. He had no right to discharge the lien ‘which secured the note- upon receipt of less than the full amount of the note. He proved the note (undoubtedly an act of' ownership) as a claim against the bankruptcy estate. He' thereby purported to clothe the bankruptcy-.court with jurisdiction to credit the sale price of-the property as part payment on the note. Whether or-not the $1,200 note was a debt of the bankrupt, the record, so far as .we have ascertained, does not show.. That,. however, is of no controlling'importance;.. If.it was a-debt of the bankrupt estate, then the act of 'yVise in-filing a claim upon-it constituted an invocation of the jurisdiction of the court, to discharge the debt by payment of less than the amount due. It would be immaterial that the ■ original note, and instead only a copy, was attached- to -the claim as filed.' In either event, the note was discharged without the payment' of the amount promised. If the amount of the -note was not a'debt against the bankrupt’s estate, a matter dependent'upon whether or not the bankrupt had assumed its payment, nevertheless the act of Wise in filing a claim upon it was an invitation to the court to discharge the lien for whatever amount Wise, or anyone else, should bid for the land. In any case Wise so dealt with the $1,200 note and the lien securing same, that unless excused by the consent of Cecil constituted a conversion of Cecil’s property.
The findings do not, in our opinion, show that Cecil was a party to the bankruptcy proceeding. Notice of “advertising said land for sale” which the court found that Cecil had, is not the same thing, we think, as notice that Cecil had submitted himself, or had legally been subjected, to the jurisdiction of the bankruptcy court to •adjudge that the land be sold free and clear of all liens and encumbrances. The court makes no findings of the legal equivalent of facts to show that Cecil was duly cited to show cause why the court should not adjudge that the land be sold free and clear of liens, etc.
However, the only materiality of the question whether Cecil was a party to the bankruptcy proceeding would be as an evi-dentiary fact. If full effect be given to the finding that Wise used the collateral ■ note as he did with the consent of Cecil, that is by no means conclusive that the land was taken by Wise free of any trust in favor of Cecil. Cecil was unable to protect his interest by purchasing the land. In any material sense he did fake the land in lieu of the lien, if not in discharge of the debt secured by the lien. The purchase of the land cost Wise nothing except the $30 exacted of him by way of advance of cost. In the absence, of any showing that Wise became the owner of the vendor’s lien note, the acceptance by him of a conveyance of the land in discharge of the noté and/or lien was tantamount to purchasing the land with Cecil’s property, which affords a familiar example of a-trust.
By certain assignments, and especially the- tenth and eleventh, the appellant challenges certain phases of the trial court’s-judgment. Based upon the conclusions of fact and general conclusions of law, the trial court decreed in part as follows :
“It is, therefore, ordered, adjudged and decreed by the court that the title and ownership of the north one half of section No. 634, Cert. No. 487, Block D, John H. Gibson original Grantee, Yoakum County, *241Texas * * be and it hereby is adjudged to be vested in the plaintiff C. W. Cecil, subject only to the lien hereinafter set forth.
“It is further ordered, adjudged and decreed by the court that the legal title to said land as hereinbefore vested in the defendant Oscar Wise (presumably by the sale effected through the trustee in bankruptcy) at the time of filing of this suit was in trust for the use and benefit of plaintiff C. W. Cecil, and that there is adjudged herein in favor of defendant Oscar Wise, a lien upon said land and all interest of C. W. Cecil therein, to secure the payment to said Oscar Wise of the sum of $1200 with interest thereon from this date at the rate of 8 per cent per annum.
"It is further ordered, adjudged and decreed by the court that the legal title to said land shall remain in the said Oscar Wise pending payment, satisfaction and discharge of the lien indebtedness herein adjudged in favor of the said Oscar Wise and that upon such payment and satisfaction of said lien indebtedness the legal title to said land shall become vested in the plaintiff C. W. Cecil.” (Italics ours)
The italicized portion of the judgment is excepted to as indefinite, uncertain and without support in the pleadings and that by reason threof “said cause should be reversed and rendered, or at least reversed and remanded, or said judgment should be corrected.”
In response to these assignments we have concluded that the judgment should be reformed or corrected as prayed for. In sustaining this contention it is ordered that the above quoted portion of the judgment be made to read as follows: It is, therefore, ordered, adjudged and decreed by the court that the title and ownership of the North one half of Section 634, Cert. No. 487, Block D, John H. Gibson original grantee, Yoakum County, Texas, containing 320 acres, more or less be and it hereby is adjudged to be vested in the plaintiff C. W. Cecil, subject only to the lien hereinabove set forth; that there is adjudged herein in favor of the defendant Oscar Wise a lien upon said land and all interest of C. W. Cecil therein to secure the payment to said Oscar Wise of the sum of $1200 with interest thereon from June, 4, 1938, until paid, at the rate of 8 per cent per annum, together with a foreclosure of said lien upon said land and interest in favor of said Oscar Wise;- and it is ordered and adjudged that said Wise have his order of sale to enforce this judgment, and that such order of sale shall have all the force and effect of a writ of possession as between the parties to this foreclosure and any person claiming under the defendant to such suit by any right acquired pending the same, as provided by law.
To the extent that appellant’s assignments have been sustained by virtue of the above reformation or correction of the judgment, the appellant’s motion for rehearing is granted. In all other respects the original judgment of this court affirming the judgment of the trial court is re-affirmed as per our original opinion of date July 7, 1939, as supplemented by what has been written herein in response to the appellant’s motion for rehearing.
Under the present disposition of the case the appellee is adjudged to pay the costs of this appeal.