
    DISHMAN et al. v. FROST.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 18, 1911.
    On Motion for Rehearing, Nov. 8, 1911.)
    1. Appeal and Error (§ 169) — Review — Scope.
    There being no statement of facts in the record, and defendants not having been represented at the trial, they cannot complain on appeal, except for fundamental error.
    [Ed. Note— For other cases, see Appeal and . Error, Cent. Dig. §§ 1018-1034; Dec. Dig. § 169.]
    2. Vendor and • Purchaser (§ 267) — Contracts — Breach by Purchaser — Vendor’s Remedy.
    Purchasers of land having broken a promise, made under a supplemental agreement, to •execute a note in consideration of the vendor’s release of the lien to enable the purchasers to secure a loan, the vendor is entitled to treat such agreement as rescinded, and to assert a lien for the amount of such note as against the purchasers.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758; Dec. Dig. § 267.]
    3. Pleading (§ 406) — Waiver oe Objections —Misjoinder.
    Misjoinder of causes of action on separate contracts is waived by failure to plead it.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1355-1359; Dec. Dig. § 406.]
    4. ArENDOR AND PURCHASER (§ 280) — VENDOR’S Lien — Foreclosure—Pleading— Sufficiency.
    The petition, in a suit to foreclose a vendor’s lien on two separate tracts under distinct contracts with J. and A. and A., respectively, is insufficient to sustain judgment foreclosing on both tracts, if it does not show how payments made on the original indebtedness were ■applied, or that the sum claimed was to be a lien on both tracts.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 280.]
    Error from District Court, Ft. Bend County; Wells Thompson, Judge.
    Action by J. M. Frost against J. D. Dish-man and another. Judgment for plaintiff, and defendants bring error.
    Reformed and affirmed.
    Taliaferro & Barry and L. M. Ballowe, for plaintiffs in error. Russell & Peareson, for defendant in error.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   JAMES, C. J.

The amended petition of J. M. Frost alleged: That on December 22, 1906, he conveyed to J. D. and A. E. Dish-man a tract of 254 acres, more or less, for which they executed to him their four ven- . dor’s iien notes, each for $1,467, with 8 per cent, interest; the first maturing December 1, 1907, the second December 1, 1908, and so on. That on same day he conveyed to A. E. Dishman a tract of 75 acres, for which the latter executed four vendor’s lien notes of $468.75 each, with 8 per cent, interest; the first maturing December 1, 1908, the second December 1, 1909, and so on. That thereafter defendants wished to change the terms of payment for said land, and get H. P. Drought & Co. to take up the indebtedness. Drought & Co. would not loan more than $5,000 on the land, and at the special instance and request of defendants, and for and in consideration of their promise and agreement to plaintiff, and for their benefit and assistance, plaintiff agreed and did indorse as a credit on said notes the sum of $736.28, being the excess over $5,00.0, thus reducing the amount of the said notes to $5,000, and indorsed the notes to Drought & Co., and released the vendor’s lien and deed of trust securing the same, which he held. That said release was for the benefit of Drought & Co., and because thereof Drought & Co. did make other and different terms of payment of said indebtedness valuable to defendants, and said Drought & .Co. paid to plaintiff the sum of $5,000. That, to induce plaintiff to agree to said arrangement, and to evidence their indebtedness to him of said sum of $736.28, defendants agreed to execute to plaintiff their promissory note for said amount, but, though often requested, have failed and refused to do so, or to pay him the said sum, with interest from March 8, 1909. That plaintiff’s lien has been lost, so far as Drought & Co. are concerned; but because of defendants’ failure to perform their contract to execute to him their note, as aforesaid, his lien on said land to the extent of said balance is still in force and effect, so far as defendants are concerned, and is past due and unpaid, and plaintiff is the owner of the superior title to said land. That, in order to consummate said deal, and at the special instance of defendants, plaintiff incurred the following expenses: $10 for abstracts, $1.50 for acknowledgment, and $6 for recording. The prayer was that plaintiff recover of defendants said sum of $17.50, with 6 per cent, interest from March 8, 1909; that he recover from defendants the title and possession of said two tracts of land, or, if that be denied, that he have judgment against them for $736.28, with 8 per cent, interest per annum from March 8, 1909, and that the same be declared a lien on said two tracts of land, and that same be foreclosed; for costs and all necessary writs, etc. The court rendered judgment against defendants for the sum of $810.20, foreclosing a lien therefor on both tracts of land.

It is not necessary to state defendants’ pleadings. The assignments of error deal with one question only, which is, in substance, that the pleading of plaintiff does not support or authorize the decree, foreelos-ing a lien for the entire judgment against both tracts of land.

There is no statement of facts. Defendants, in fact, were not present or represented at the trial, and are not in position to question the judgment, except for error that is fundamental in its nature.

The averment that plaintiff released the lien, and was induced so to do by the promise of both defendants to execute- him their note for $736.28, gave plaintiff the right, when defendants refused to give such note, to treat the new agreement as rescinded, and to assert against them whatever rights he originally had under his contracts with defendants in respect to said sum. This means that plaintiff was restored to his right to claim the $736 and the liens by which same was secured, so far as the defendants are concerned. Plaintiff having elected to take that course, and to treat the new contract 'as rescinded he could recover on the original contracts as they stood.

Upon the original contracts, which were separate transactions in every respect, plaintiff could not properly have joined both matters, but there were no pleadings asserting a misjoinder. Under the original contracts, plaintiff had a separate cause of action against each defendant, and a separate claim for lien on the respective tracts for what was unpaid thereon; but the failure to plead misjoinder disposes of any question of this kind.

The petition upon which the judgment is based is clearly insufficient to support the judgment, foreclosing a lien on both tracts for the entire debt claimed, and if this is true the foreclosure constitutes fundamental error.

What are the allegations? Plaintiff alleged that he had originally a lien on one tract to secure $5,868 of notes of both defendants, and that he had originally a lien on the other tract to secure $1,875 of notes of one of the defendants only (A. E. Dishman); this tract having been sol'd and conveyed to him alone. He alleges that at the time of the Drought transaction the aggregate of the indebtedness for both tracts was reduced to $5,736.28, thus disclosing that payments had been made on the aggregate original indebtedness, whether on one set of notes, or on the other, or on both not being alleged. Nor is there any allegation that defendants agreed that this balance of $736.28 was to be a lien on both tracts. Nor is there any allegation as a fact that said, sum of $736.28 was a lien on both tracts. It is evident that the petition left it uncertain and undeter-minable therefrom how much of the $5,736.28 was applicable to the debt upon the larger tract, and how much upon the smaller one; and it left equally uncertain and undeterminable therefrom how much of the $736.28 applied to one tract, and hew much to the other. Plaintiff stated no facts whatever which would warrant the $736.28 to be foreclosed generally upon both tracts. If said sum was a lien upon one of the tracts, it was not a lien upon the other; and if each tract was subject to a lien for part of the sum, a foreclosure upon, each should have been decreed accordingly. The pleading was entirely destitute of averments of fact which would authorize the foreclosure in the manner decreed in the judgment. The contracts were separate and distinct; there was no privity of debt nor of ownership. Each purchaser was entitled to a separate decree of foreclosure, giving him the right to-redeem, and the decree rendered was not warranted by the pleadings.

The judgment is therefore reversed, and the cause remanded.

On Motion for Rehearing.

In this motion appellee offers to waive any judgment foreclosing lien on the lands, and asks that the judgment be otherwise affirmed; appellee to pay the costs of the appeal. Appellant has assigned no error, except as to the lien. Accordingly the judgment will be reformed, so as to refuse a foreclosure of lien, and otherwise affirmed.  