On Motions for Rehearing.
Several of the appellees in this case have filed motions for rehearing, all of which have been duly considered, and the conclusion reached that they should be overruled. Ap-pellees Mrs. Boog-Scott and W. H. Stephens present the contention that, inasmuch as they acquired certain vendor’s lien notes given for the purchase money of some of the subdivisions of the tract of land that was sold by McGlain after the deed by which a half interest in that tract had been conveyed back to McOlain, therefore, as between them and Mrs. Powell, the appellant, they are entitled to protection as innocent purchasers, or bona fide holders for value, and without notice. We stated in our original opinion that the record failed to show that the appellees had paid out anything of value upon the faith of the deed referred to, or had otherwise acquired any equities as against Mrs. Powell, and a re-examination of the record confirms that statement. In the first place the appel-lees ref erred, to did not assert any such right *677of equitable protection in tbeir pleadings, and in the second place the record fails to show such facts as would render such plea available. It fails to show that the ap-pellees referred to paid out any money or parted with anything of value in order to acquire the ownership of the notes upon which they seek to base their superior equity, nor does it show that they did not in fact have actual knowledge, before and at the time they acquired the notes referred to, that Walkér, Smith & Co. held some of the original purchase-money' notes against the Vanhoose tract. Furthermore, even if the complaining áppellees were misled by the conduct of McClain and Quinn in putting on record a deed reciting the fact that the purchase-money notes referred to were canceled, we fail to perceive how that fact could affect Walker, Smith & Co., or any one else who had been substituted to their rights.
In the motion for rehearing filed by the Coleman National Bank (which bank took a deed of trust on the Vanhoose tract after the deed had been recorded conveying that tract back to McClain and Joe Tolson, and purchased the land when it was sold under that deed of trust) it is contended that the bank is entitled to protection as an innocent purchaser, because (1) the appellant, Mrs. Powell, acting by her attorneys, has filed an agreement'admitting that the rights of the bank are superior to the rights of appellant, and (2) because the findings of the trial court show that the bank is a bona fide purchaser for value, and entitled to protection as such. As to the first point, the transcript in this case is voluminous. We find nothing in the index indicating that it' contains the written agreement referred to, and counsel for the bank' have failed to refer to any page of the transcript showing the existence of such agreement, arid, if such agreement was contained in a separate paper, and filed in this court, we have no recollection of ever seeing it, and.it cannot now be found with the record. When we look to the facts, the bank is about in the same condition as the other appellees who are claiming protection as bona fide holders for value. The findings of fact do not show that the bank parted with anything of value on the faith of the deed which recited a cancellation of the original Vanhoose notes, nor do such findings show that the bank did not have actual knowledge of the fact that the notes were then held by Walker, Smith and Co., and could not be canceled by the execution and registration of the deed referred to. Under the four Van-hoose notes which were delivered by McClain to Mrs. Powell in pursuance of his contract, she acquired the lien on the entire Vanhoose tract by which those notes were secured to the extent of her debt, but no further; and that lien is superior to the rights of all other litigants except those of the appellee W. H. Stephens, which are founded upon the original blanket mortgage lien upon the entire -1,476 acres. As to that lien upon the entire tract, the rights of appellee Stephens are superior to those asserted by Mrs. Powell, as well as all the other litigants; but the rights asserted by Stephens under purchase-money notes given for certain subdivisions of the entire tract, which were subsequently conveyed by McClain to certain purchasers, are inferior, and must yield to the superior right of Mrs. Powell growing out of her contract with McClain by which she was, in effect, substituted to the rights of Walker, Smith & Co. in the Vanhoose purchase-money notes.
After our former opinion was written, and judgment rendered in accordance with it, this court, of its own motion, set that judgment aside, and rendered judgment reversing the case, with instructions to the trial court to render a judgment in conformity with the views expressed in this court’s opinion, and that judgment will be permitted to stand. However, we deem it proper to say that, if the parties should agree upon a different judgment, the court will have the power to render the judgment so agreed upon, regardless of the fact that the case is reversed with instructions.
Motions ■ for rehearing overruled.