On Motion for Rehearing.
In behalf of appellees a vigorous effort for a rehearing has been presented. It is insisted that we erroneously awarded to appellant the $900 and a vendor’s lien to secure the payment of the second vendor’s lien notes Osburn received in the exchange. In deference to the earnestness and ability of the eminent counsel who now so insists, we will again review these questions. Recurring, therefore, to the contract, we find: (1) The value of appellant’s (Osburn’s) property, real and personal, unincumbered as fixed by the contract, is $8,178.28; (2) the value of appel-lee Smart’s property, including incumbrances, as fixed by the contract, is $12,168.28.
This property of Smart’s consisted of the two notes aggregating $3668.28, which being deducted leayes the value of the two lots conveyed by Smart to Osbum • as $8,500. These two lots were incumbered in the aggregate sum of $4,440. Therefore the value of Smart’s equity is $4,060.
Therefore the difference between the unin-cumbered value of Osburn’s property and the equity of Smart’s property is $4,118.28.
. The contract says: “The party whose property, to be conveyed and equity therein, is of the least value as fixed hereby, shall pay to the other party such difference in cash and notes.”
Therefore, by the very terms of the contract, Smart was obligated to pay to Osburn $4,118.28 in cash and notes. The notes be- • ing for $3,668.28, Smart was obligated by the contract to pay the balance, $450, in cash.
Again, the contract provides: “Seller to retain' vendor’s lien and deed of trust to secure said notes.”
There being no other notes involved by the terms of the contract except the two second lien notes, aggregating $3,668.28, which were transferred by Smart to Osburn as part of the purchase price of the Osburn farm, the expression “said notes” necessarily means these two notes. Therefore, by the terms of the contract, a vendor’s lien was specifically provided in favor of Osburn and against the land conveyed by Osburn to Smart.
Thé settled law"of this state is: Where there is a variance between clauses of a contract, the one which contributes most essentially to the contract is entitled to the most consideration.
If there is an irreconcilable conflict between clauses of the contract, by reason of which the meaning is obscured or rendered doubtful, the expression in the clause first appearing will control. 10 Tex. Jurisprudence, p. 311, § 179, and cases there cited.
Therefore the expression, “Osburn paying $450.00 to Smart,” following the positive provision in the contract, “The party whose property to be conveyed and equity therein, is of least value as fixed hereby, shall pay to the other such difference in cash and notes,” being absolutely at variance, and in irreconcilable conflict with the plain terms of the contract, is a self-evident error, and must be discarded. Any other interpretation would entirely destroy the plain terms of the contract considered as a whole, and would permit the establishment of- an entirely different contract by parol testimony, without any pleading to base it upon.
An examination of the evidence, which came up in question and answer form, discloses that appellant and appellee never talked with each other about the contract; that neither of them read it; that each of them trusted it entirely to Borho, the real estate agent. Appellant said: “I did not read the contract; I trusted it entirely to Borho; I just relied on what he said; I signed whatever papers Borho showed me and took whatever he handed me. I was sick in bed most of the time and I did not read. I had absolute confidence in the man.”
The witness Mrs.. Osburn said: “Mr. Bor-ho said Mr. Osburn was due Mr. Smart $450.00 difference, and Mr. Osburn said T will give you a check.’ He wrote out the check and said ‘Widow I am leaving it to Mr. Borho.’ ”
Appellee Smart said: “I did not read the contract.” The witness Borho said: “They both tried to put their property up so that they could get together on the trade; they both agreed that was the value of their property ; I put in- the contract what they both agreed to, when I finished the negotiations— I reduced it to writing.”
It is quite evident that Mr. Borho, representing both parties, made the mistake in writing into the contract the $450 statement and collecting from Osburn $450. It is therefore evident that Smart should repay this $450 and should pay to Osbum $450 'that he should have paid at the time of closing the contract, making a total due Osburn of $900, •with interest, as stated in the- original opinion in this case.
In his motion for rehearing, appellee for the first time raises the question and submits the propositions: First, where seller accepts notes of a’third party-as part of the consid-*1079oration for the sale, he thereby waives the lien; second, a vendor’s lien does not arise in the case of a sale of real and personal property, for one entire consideration without any distinct price being set on the land.
We have examined the authorities submitted by counsel for appellees under these two propositions as carefully as time will permit, and we find:
First. That these authorities are based upon the theory that the vendor has waived the implied vendor’s lien by taking either the property or the responsibility of a third person.
In the case of Parker County v. Sewell, 24 Tex. 238, the court says: “At all events, it is prima facie evidence of a waiver, and the onus is on the vendor to prove, by the most cogent and irresistible circumstances, that it ought not to have that effect.”
In the case of Faver v. Robinson, 46 Tex. 207, the court approves the Parker County v. Sewell Case and says : “He [vendor] will be considered to have waived the lien * * * unless it appears that he reposed as well upon the lien as upon such security.”
In the case of Cresap v. Manor, 63 Tex. 487, it is said: “[The law] did require, however, some affirmative action on his [seller] part to show that he should repose upon the lien, as well as the additional security, or something that amounted to an understanding between the parties that the lien was to be retained.”
In the ease of Archenhold v. Branch (Tex. Civ. App.) 193 S. W. 457, 459, the court says: “It is the general rule that the vendor of lands who takes independent and distinct security therefor waives the implied lien of the vendor, unless it appears that he relied as well upon such lien.”
In the case of Scharbauer v. Lampasas County (Tex. Civ. App.) 214 S. W. 468, the holding of the Cresap v. Manor Case, supra, is quoted and adopted.
In the case of Dyson v. Dysart (Tex. Civ. App.) 250 S. W. 716, 717, the cases cited above are quoted with approval, and then the court says: “The decision was clearly based on the .conclusion that the notes of third parties, indorsed by the purchaser and delivered to the vendor in payment for the land, constituted such ifidependent security as would preclude the ássertion of an implied vendor’s lien, in the absence of proof of other facts that would show an intention to retain the lien.”
Second. Under the second' proposition above mentioned, in the case of Wasson v. Davis, 34 Tex. 167, the court says: “The vendor has a lien upon the land sold only so long as he shows no purpose to release the land and take other security. But any act of the vendor which shows an intention to release the land will divest the lien., * * * The question is not whether the vendor relies upon his lien, but.whether he relies upon the particular estate sold, for his security. If he intends to rely on the estate, the law gives him the equitable lien, and it would not be fair to divest the lien, if he shows only a purpose to strengthen it and not to abandon it.”
In that case Wasson had given up the notes of the purchaser, one Williams, and had accepted in lieu of those notes the notes of Davis, and his action was brought against Davis, not Williams.
The court, on page 168 of 34 Tex., says: “It is argued by the appellant that it was incumbent upon Davis to show that Wasson had waived his vendor’s lien, and various authorities are cited. This would doubtless be the case in an action between vendor and vendee, or in any action brought directly to recover the purchase money.”
In that case Davis’ note had not only been given in lieu of the Williams’ note, but had been given also as part of the purchase price of personal property as well as the real estate.
The other cases cited by appellee upon this point, as well as upon the first proposition, are unquestionably the law. But they are not applicable to the facts in this case as appel-lees’ counsel desires us to construe them. They are, however, applicable when the point quoted above is eopsidered in connection with the language of this contract, for that language clearly shows that appellant, Osburn, did not intend to waive his vendor’s lien, the language being “seller to retain vendor’s lien * * * to secure said notes.” This language pleaded by plaintiff and admitted by the defendant clearly negatives any idea of appellant intending to waive his vendor’s -lien, but, on the contrary, it affirms his intention to retain such lien.
We believe, however, that our original opinion should be. modified to this extent: That the vendor’s lien shall attach to the land conveyed by Osburn to Smart only to the extent of said notes aggregating $3,668.-28, together with interest and attorneys’ fees as therein provided, and the $450, which by the terms of the contract Smart was to pay Osburn, with interest, thereon at 6 per cent, from the date of the final contract.
Appellees’ motion for rehearing will therefore be overruled, and a judgment will be here entered as follows:
In favor of S. P. Osburn and against J. O. Smart for $900, together with interest thereon since the' 16th day of August, 1929, at 6 per cent, per annum; to secure $450 of which the implied vendor’s lien upon- the land eon-veye'd by Osburn to Mrs. Smart is awarded. Also in favor of S. P. Osburn and against J. O. Smart for $3,66S.28, together with interest .thereon at 8 per cent, per annum since July *108012, 1929, the date of said note, the interest on each of said notes to he calculated semiannually, and each unpaid amount of interest to bear interest from the "time it became due until paid at the rate of 10 per cent, per annum, together with 10 per cent, on the unpaid balance of said notes, as provided in each of them, as attorneys’ fees. Also in favor of S. P. Osburn and against J. O. Smart and Aurelia Smart, establishing the vendor’s liens hereinabove specified against the lands described, which was conveyed by Osburn to Aurelia Smart, and foreclosing said vendor’s lien, and awarding an order of sale of said real estate in the manner provided by law. Also granting to J. O. Smart and Aurelia Smart the right of subrogation as against the defendant Turner, as provided in the original opinion filed in this case. Executions shall issue against J. O. Smart for the payment of the $900 with accumulated interest and costs. And execution also shall issue against J. O. Smart for any balance that may remain due, if any, after the sale of the real estate under the vendor’s lien, as herein provided.
Defendant J. O. Smart will pay all costs of the trial court and of this court.