BROWN, Associate Justice.
W. M. Fortescue conveyed to Isaac
Watson a half league of land for $3321, of which one-third was paid in cash, and for the remainder two notes for $881 each, payable in one and two years, and one note for $452, payable in three years, were executed -by Watson. The deed executed by Fortescue reserved a lien to secure payment of the notes. Fortescue at once assigned the third note to W. S. Swilley, who, .with one Cameron, afterwards indorsed it to the Beliance Lumber Company. That company brought suit upon the note .against Watson as maker and Swilley and Cameron as indorsers, and -sought also a foreclosure of the lien upon the land, failing, however, to make Fortescue a party. A judgment was recovered in that suit against .all of the defendants and foreclosing the lien as sought. Order of sale was issued upon it and the land was sold thereunder and W. L. Douglass became the purchaser for the sum of $50. Thereafter Swilley prose•cuted a writ of error from the judgment and it was reversed, because he had no.t been properly served, and the cause as to him was remanded for further proceedings, but the judgment as against the other defendants and the foreclosure was not disturbed. The cause as to Swilley has never been disposed of, but after the reversal, he settled with the plaintiff therein and secured from it an assignment of all its rights in the judgment and the note on which it was founded.
Prior to the recovery of the judgment referred to by the Beliance Lumber Company, Fortescue had brought suit in Nebraska against Watson, seeking personal judgment alone against him upon the first two notes. Watson defended on the ground that the purchase of the land was in fact made by and for one Emory A. Cobb, and that the deed was made to and the notes executed by him (Watson) as the depository of the title for Cobb, and that the agreement of all parties was that Watson
was not to become personally bound upon the notes. Upon this defense, judgment was rendered in his favor. There were no parties to this proceeding except Fortescue and Watson. Thereafter and subsequent to all of the transactions before stated, except the assignment from the Reliance Lumber Company to Swilley, Fortescue indorsed and assigned to E. A. Blount the two notes originally retained by him, and also executed to Blount a conveyance of all his (Fortescue’s) title to the land for which the notes were given.
The present action was brought by Blount December 10, 1898, against Watson, Cobb, Douglass, Swilley, and others. In the amended pleading on which the last trial was had, he stated the history of the transactions and offered to release all claim upon the land if the defendant entitled thereto would pay the notes held by him; alleged that he had tendered to Douglass the amount paid by the latter at the. sheriff’s sale, and that he had deposited in court a sum sufficient to pay off the Swilley judgment, which he tendered to defendants, and that Douglass had asserted against "one of the notes the defense of limitation. He prayed, first, that he be allowed to recover the land; or, if that relief should be denied, second, for judgment against Watson for the amount of his two notes and a foreclosure of his lien and sale of the land and the application of the proceeds to his claim, or proportionally to such claim and to the $452 note; or, if this should be denied, for a proportionate division of the land between him and the defendants. Watson and Cobb made no defense; Douglass pleaded limitation against one of the notes sued on, set up his title under the facts stated, and pleaded the Nebraska judgment in favor of Watson in bar of any recovery on the notes. He denied plaintiff’s right to rescind the original sale of the land and to recover it, but did not offer to pay the notes sued on. Swilley, in addition to pleading the facts upon which his rights under the $452 note and the judgment thereon depend, attacked the sheriff’s sale to Douglass and sought to have it set aside on the ground that Douglass was the attorney for the Reliance Lumber Company in that proceeding, and that the sale was made irregularly and for a grossly inadequate price.
The judgment of the District Court, which was affirmed by the Court of Civil Appeals, set aside the sale to Douglass, requiring the return to-him of the amount of his bid and interest; ordered the money paid in by plaintiff to pay the balance of the judgment on the $452 note to be paid to Swilley, and adjudged the land to Blount.
The Court of Civil Appeals stated meagerly the facts bearing upon Douglass’ purchase, but the testimony is undisputed and proves that Douglass and Jackson, a firm of attorneys, represented the Reliance Lumber Company in procuring the judgment under which the land was sold, and after the land had been advertised for sale, Douglass informed the Reliance Lumber Company of the fact that the land would be sold and the time and place, advising his client to purchase the land; but the lumber‘company declined to do so and instructed Douglass not to buy the land for it. He then stated to the officers of the company that
he would buy it for himself, to which they assented. Swilley was defendant in the execution and liable for the amount which might remain, unpaid after the subjection of the land, and Douglass informed him on the day before the sale that it would occur, stating that Douglass intended to buy the land as his client declined to do so. Douglass invited Swilley to join him in the purchase of the land, which the latter declined to do. On the day of the sale, Swilley was present and did not: bid upon the land nor offer any objection to the sale being made at that; time. As to the value of the land, Swilley testified that he was afraid to> bid upon it on account of the condition of the title, but that the land was worth on the day of sale about $2 per acre sold in the usual manner of part cash and the balance on time. He states that at the time there was outstanding incumbrance of $2000, besides the notes held by Blount and the amount of the judgment. Swilley says, with reference to the sale and the reason why there were no other bidders, “I think everyone else felt about it as I did as to the land and its value at the time of • the sale.”
The Court of Civil Appeals disposed of the sale to Douglass in very few words, but we gather from the opinion that the judgment of the trial court was affirmed because Douglass was attorney for plaintiff in the writ, holding that a purchase by an attorney, with the consent of his client, is void in favor of the defendant in the execution. We assume, then, that the court sustained the judgment of the District Court setting aside the sale to Douglass upon the contention presented by the attorneys for Swilley, based upon McLaury v. Miller, 64 Texas, 384. That case rests mainly upon Howell v. Baker, 4 Johnson’s Chancery, 118, in which Chancellor Kent wrote in terms severely condemning the practice of an. attorney buying property exposed for sale under. process controlled by him. That eminent chancellor quoted from Hall v. Hallett, 1 Cox Chancery, 134, this language: “Ho attorney can be permitted to buy in things in a course of litigation, of which litigation he has the management. This the policy of justice will not endure.” The chancellor then continued the opinion in the following language: “But though the rule-disqualifying trustees, and particularly solicitors and attorneys, from purchasing at sales brought about through their agency, has strong pretensions to be applied to this very case, I do not perceive it to be incumbent upon me, at present, to decide that point. The purchase by the defendant B. was made under special circumstances, which are sufficient, of themselves (and particularly when taken in connection with his-character as attorney to the execution) to constitute him a trustee for-the parties whose interests were concerned in the sale.” The following-comment upon that opinion by Chief Justice Walworth states forcibly the fallacies in Chancellor Kent’s dicta: “I consider the fact that the-purchase was made by the attorney, without the consent and against the interest of some of his clients, or those for whose benefit he is supposed to act as attorney, as important in this case. For notwithstanding the court, in Howell v. Baker, 4 Johnson’s Chancery Reports, 121,
said that the rule disqualifying solicitors and attorneys from purchasing at sales brought about by their agency, had strong pretensions to be applied to the case of an application by the defendant in an execution to set aside a purchase made by the plaintiff's attorney, the late chancellor intentionally avoided deciding that point, though it was directly before .him in that suit. I think the doctrine has never been carried to that extent, even in the decisions of the English courts, which have gone the ■farthest on this subject. The reasons why the attorney or agent is not permitted to purchase is because it is supposed to be inconsistent with the duty which he owes to those for whom he is employed to act, and from the relation which exists between the agent and his principal, or •between the attorney and his client. But these reasons can not apply to the defendant in the execution. The plaintiffs attorney owes no allegiance to the defendant and is under no obligation of duty to take care of his interest; neither is there any confidential connection existing between them. There can be no doubt of the right of a plaintiff to purchase on his own execution. And I think there can be as little doubt of the right of the attorney to purchase for his client, with his assent, or to purchase for himself, or as the agent of a third person, with the like permission.” Hawley v. Cramer, 4 Cowen, 733. In the case of Howell v. Baker, the chancellor cites the following three cases: Ex parte James, 5 Vesey, 708; Ex parte Hughes, 6 Vesey, 617, and Hall v. Hallett, 1 Cox, 134. Each of the first two cases involves the validity of a purchase made by the assignee in bankruptcy and his attorney of property belonging to the estate, and the court in each case held the sale invalid. Ho court in this country would hesitate to make the same ruling upon a like state of facts.’ The case of Hall v. Hallett presented a most flagrant fraud perpetrated upon minors by their guardian and his attornejq by which they acquired the estate of the wards through a purchase by the attorney. The proceeding was by the wards against the guardian and the attorney to set aside the sale and require them to account for the property which they had thus fraudulently misapplied. In discussing the validity of an assignment made by the guardian to his attorney of claims belonging to the wards’ estate during the pendency of the guardianship, the court used the language quoted by Chancellor Kent: “Ho attorney can be permitted to buy in things in' a course of litigation, of which litigation he has the management. This the policy of justice will not endure.” This language had no reference to the rights of the maker of the note assigned, but referred alone to the relation that the guardian and attorney bore to the wards themselves. Much theorizing has been based upon the expression of Lord Thurlow, distorting it into the assertion of a trust relation between an attorney and the opposite party in the suit, which, we think, will not endure careful in- ' vestigation.
Leisenring v. Black, 5 Watts, 304, cited in McLaury v. Miller, was a suit by a party to set aside a sale at which the attorney of plaintiff had . purchased the property for the exclusive benefit of a eoplaintiif in the
execution; and the court held that the attorney’s obligation to each of his clients was equal, and he could no more purchase for one client to the exclusion of the other than he could purchase for himself in fraud of both,—a very proper and just decision, not at all in point "in the case now under discussion, nor does it support the decision in McLaury v. Miller.
Howell’s Heirs v. McCreery’s Heirs was cited by Judge Stayton. In that case, an attorney of the plaintiff in the writ purchased the property for himself and another party. The defendant in the writ brought suit to recover the property and Judge Bobertson said: “It seems to us that the purchase by the attorney under his client’s execution should be deemed to have been invalid and voidable for the following reasons: (1) A purchase by an attorney under his client’s execution over which he had control, predisposes a chancellor to look on the transaction with a peculiar jealousy and scrutiny, and should never be sustained when it was for a grossly inadequate price and exhibits a semblance of unfairness.” The court then proceeds to show, that the price was grossly inadequate and that the circumstances proved that the sale was unfairly made. As usual the learned judge quoted the remark of Lord Thurlow in the case of Hall v. Hallett, but did not apply it in that case.
Blight’s Heirs v. Tobin, 7 Monroe, 612, involved a purchase by the attorney of the plaintiff in the writ, and the court set the sale aside upon the ground of inadequacy of consideration and unfairness, saying: “It has been held, or at least it has been said by some chancellors, that a purchase by counsel in such circumstances ought not to be permitted to stand. * * * But without approving or disapproving these authorities and not wishing to be understood that we go the whole length of this doctrine, all the use we shall make of it is to show that the chancellor, if he does not carry out this doctrine, will scrutinize a purchase thus made by counsel with greater strictness than he would a purchase made by one who had no control over the execution, and if there be circumstances or grounds to make such purchaser a trustee, it will be done, securing to him all the money which he may have paid.”
The honorable court then proceeded to show that the sale in that case was for a grossly inadequate price and under circumstances which would warrant any court of equity in setting the sale aside.
Harper v. Perry, 28 Iowa, 58, was a suit by a party to set aside a purchase made by plaintiff’s attorney of the property of the client, in litigation at the time, without the knowledge of the client and against his interest. The case is not in point.
Mackay v. Martin, 26 Texas, 62, was decided by the three eminent judges who formed the first Supreme Court of our State and the opinion was delivered by Justice Wheeler, in which he quoted from Chancellor Kent, as did Judge Stayton in McLaury v. Miller, and, like Chancellor Kent, Judge Wheeler based the decision upon gross inadequacy of price paid and the unfairness in the sale.
The authorities cited by Judge Stayton do not sustain the contention in this case, and, upon a careful consideration of the case of McLaury v.
Miller, it will be found that the eminent jurist who wrote the opinion followed the example of the chancellors in quoting the general language-of criticism upon the practice of attorneys buying at sales under writs-controlled by them, but decided the case upon the ground that the price-was inadequate and the circumstances sufficient to justify the court in. setting the sale aside. The judgment in that case does not rest upon the proposition that the sale was void because the purchaser was the-attorney of the plaintiff in the writ. The judgment in McLaury v. Miller was put upon this ground: “The inadequacy of price in this case is-manifest, and it has been said in many cases where this is true that slight, additional circumstances will justify the inference that in a legal sense-the sale is fraudulent. The circumstances in this case we deem sufficient.”
We have gone thoroughly into the examination of all- the eases cited' by Judge Stayton in McLaury v. Miller, have examined all authorities, that we have been able to find bearing upon this question, and we have-found no case in which, at the instance of the defendant, it has been held that a sale of land under judicial process was void because the purchaser was attorney for the plaintiff in a writ, unless the circumstances impeached the fairness of the transaction. It is a well settled rule of law that an attorney can not, for himself, buy property exposed to sale by process under his control without the consent of his client, unless he bids-sufficient amount to discharge the judgment debt. This rule has been rigidly enforced by the courts and should not be relaxed, for the delicate-relation of trust between attorney and client should not be imperiled by the intrusion of the selfish interest of the trustee.
The authorities justify the conclusion that when an attorney purchases, property at a sale under process controlled by him, without circumstances impeaching the fairness of the transaction, and when the client, consents to the purchase, or the attorney bids sufficient at the sale to discharge the judgment, such sale will be held good against any claim of' the defendant in the writ. LeConte v. Irwin, 19 S. C., 559; Cavender v. Heirs of Smith, 1 Clark (Iowa), 306; Grayson v. Weddle, 63 Mo., 539; Hess v. Voss, 52 Ill., 481; Relf Syndic v. Ives, 10 La., 689; Hyams v. Herndon, 36 La. Ann., 879.
In LeConte v. Irwin, above cited, the court said: “We do not see why the attorney of the plaintiff, after judgment rendered and entered, may not be a bona fide bidder at a judicial sale fairly conducted, as well as-any other person. He has no duty to perform that is inconsistent with the character of purchaser. The law looks with jealousy upon contracts-between an attorney and his client to the disadvantage of the latter, but: here there was no contract with the client. Miles v. Ervin, 1 McC. Ch., 524. The complaint is not made by the client plaintiff but by the defendant. The interests of defendants in general require that everybody may bid. If the plaintiff’s attorney is forbidden to bid, the defendant is-thereby injured by the decrease in competition. If an attorney complies with his bid, or procures another to do it by payment out of his own.
funds, on what grounds is it less a bona fide bid than if made by some other person?” We think the court of South Carolina correctly puts the matter upon the ground that there is no relation of confidence or trust between the attorney of the plaintiff and the opposite party. The truth is, and must be so recognized by every lawyer, that of all people, the lawyer has least confidential relations with the party against whom he is conducting litigation. In the nature of things, they deal at arms length. There is no relation of contract between them; on the contrary, the attorney is under contract with his client to prosecute the claim of Ms client against the opposing party with the purpose of securing for his client all that the law and the evidence will justify in fairness and honorable dealing, and it would be placing an attorney in an exceedingly awkward position to say that he was under obligation to his client to press a claim to collection on the best terms consistent with right, and at the same time hold Mm obligated by some imaginary trust relation between him and the defendant to make the property exposed to sale bring the entire amount of his client’s debt. The statement of the proposition shows the absurdity and the unsoundness of the position which asserts a purchase by the attorney under such circumstances to be void upon the ground that he occupies a trust relation to the opposite party. As was said by the court of South Carolina, it is to the interest of both parties to the execution that everybody should bid, and if a rule is adopted by which the attorney of the plaintiff would be disqualified as a bidder, the defendant would be thereby deprived of the benefit of such bidding. We can find no sound reason of public policy upon which to base such restriction and no authority to sustain it.
The relation that attorneys occupy towards their clients is of a very delicate character, in the highest degree confidential, and demands of the attorney the utmost good faith and that he refrain from “the appearance of evil” in the conduct of his client’s business. Self-interest must not be allowed to modify the zeal of an attorney nor corrupt his loyalty to his client, bio lawyer is justifiable in acting unfairly towards the opposite party, either in the interest of his client or himself, and slight circumstances tending to prove conduct by an attorney which has prevented property exposed to sale under Ms direction from bringing a fair price ought, at the instance of either party, to be held sufficient to set the sale aside. This is really the rule announced in McLaury v. Miller. We believe the rule contended for would embarrass the enforcement of judgments, complicate the relations between clients and attorneys, and the duties of attorneys to the opposing parties, resulting in no substantial benefit. We therefore conclude that the District Court erred in setting aside the sale made to Douglas.
The most important and most difficult question in this case arises out of the holding by the Court of Civil Appeals that Blount had a right to recover the land in question because Douglass interposed a plea of the statute of limitation against the notes sued upon, they being for a part of the purchase money of the land. If Blount held all of the notes given
for the purchase money of the land and no foreclosure had occurred, he would have the right, upon the interposition of the plea of limitation, to rescind the contract of sale and recover the land, for, being the owner •of all of the purchase money notes and of the legal title, he would be in a position to rescind the contract in whole by surrendering all of the notes and placing the vendee in the position he was before the contract was made. When, however, Fortescue assigned one of the notes to Swilley, he put it out of his power to rescind the whole contract; therefore his right of rescission ceased to exist, and having no right of rescission himself at the time he conveyed to Blount, he could pass no greater right than he possessed. The legal title, as it is termed, and the purchase money notes being once separated and held by different people, the right -of rescission ceased for the time being; but upon the legal title and all ■of the purchase money notes being again united in the same "person, the right of rescission would be revived. White v. Cole, 87 Texas, 500. But in that case no foreclosure had occurred, and the legal title was voluntarily conveyed to the holder of the note.
After he assigned the note, Fortescue held the legal title in trust to se•cure the payment of the notes retained by himself and the one assigned. The legal title in Fortescue amounted simply to a trust and he could not so dispose of the legal title as to impair the lien of the note he had transferred. Loan Co. v. Beckley, 93 Texas, 272; Russell v. Kirkbride, 62 Texas, 457. The title which remained in Fortescue was not the subject •of sale under execution. Willis v. Somerville, 22 S. W. Rep., 781. Application for writ of error presenting this question alone was refused. 'The reserved title could not have been conveyed to Fortescue to the prejudice of the holder of the notes for the purchase money. It was not such .an interest in the land as would pass by devise óf lands. Summerhill v. Hanner, 72 Texas, 228. If the vendor had parted with all the notes, he would not have been a necessary party, to a foreclosure, but the title would be perfected upon foreclosure and sale at the suit of the assignee •of the notes. McCamly v. Waterhouse, 80 Texas, 341. It is apparent, then, that the legal title that remained with Fortescue after the assignment of one note, to Swilley was not a property right in the land that ■could be incumbered by the transferred note.
By the transfer of one of the purchase money notes to Swilley, the lien upon the land passed to the assignee in the proportion that the assigned note bore to the whole debt secured upon the land, and he was, by the transfer and delivery of the note, empowered to foreclose upon the land to the-extent of his lien. 9 Enc. of Pl. and Pr., 270c; Lynch v. Elkes, 21 Texas, 229; Pugh v. Holt, 27 Miss., 461; Cain v. Hanna, 63 Ind., 411; Goodall v. Mopley, 45 Ind., 358. The foreclosure by the lumber company of the note assigned to Swilley did not affect the rights of Fortescue, who was not made a party, but, by his purchase, Douglass acquired the title of Cobb, the original vendee, and the interest that the lumber company had in the land, which gave Douglass title to so much .as the foreclosed lien represented. Pugh v. Holt, 27 Miss., 461; Thomp
son v. Robinson 93 Texas, 170; Foster v. Powers, 64 Texas, 250; Dean v. Hudson, 1 Posey U. C., 371. Douglass held the land under his purchase subject to the lien of the outstanding notes in the hands of Fortescue.
While Fortescue held all of the notes, he had the right, upon the breach of the contract or the repudiation of it by the vendee, to claim the land or to demand the money and foreclose the lien of the notes upon the land; but he had not the right, at the same time, to claim both the land and the money. Gardener v. Griffiths, 93 Texas, 355. A foreclosure of' the notes and a sale of a part of the land by Fortescue would have affirmed the contract as to the whole of the land and he could not after-wards recover that portion which he had not sold. Gardener v. Griffiths, supra. Having assigned one of the notes and a part of the land to Swilley, the right to demand the money upon that note and to foreclose and enforce the payment of it by the sale of the land passed by the assignment. Whitehead v. Fisher, 64 Texas, 639. Certainly it could not be that Fortescue had the right to reclaim the land, and, at the same time, the assignee could demand the money. It follows that when the lumber company exercised the privilege of foreclosing it was an election to-proceed against the land, and placed it beyond the power of Fortescue or the lumber company to rescind the sale to Cobb, while the sale under the foreclosure judgment remained in force.
It is manifest that the right of Blount to rescind depends upon his. right to redeem the land from the sale made under the judgment of the lumber company, by which he could acquire the note foreclosed. Admitting, for the sake of the argument, that redemption would restore the right of rescission, it is certainly true that if he can not redeem, his right to claim the land can not be revived and asserted in this case.
In his work on Equity Jurisprudence, section 1220, Mr. Pomeroy says: “Any person who holds a legal estate in the mortgaged premises, or in any part thereof, derived through, under, or in privity with the mortgagor, and any person holding either a legal or equitable lien on the premises, or any part thereof, under or in privity with the mortgag- or’s estate, may also in like manner redeem from the prior mortgage.” In Whitehead v. Fisher, 64 Texas, 639, this court held that the holder of one of a series of purchase money notes might redeem the land from a sale made under a judgment and foreclosure, to which he was not a party, upon another note of the same series, which had been transferred with a right of prior payment, because the holder of the postponed note was in the attitude of a subsequent mortgagee. Under the facts, the assignment of the note by Fortescue to Swilley gave no priority of right over those retained; the holders of the several notes occupied the relation of equal lienholders under the same mortgage. Salmon v. Downs, 55 Texas, 243; Wooters v. Hollingsworth, 58 Texas, 371: McMichael v. Jarvis, 78 Texas, 672. Fortescue having voluntarily parted with the right to reclaim the land, he and Swilley held the notes as if the lien had never been reserved in the face of the deed or the notes; each might foreclose the lien of his note or notes. Accepting the rule laid down in the
case of Whitehead v. Fisher as the established law in this State, Blount does not come within its terms, because the notes which he holds were never subordinate in any way to the lien of the note foreclosed by the lumber company, nor did the foreclosure and sale under that note in any manner impair the rights of Fortescue. He had the same right to foreclose upon the land that existed before the foreclosure by the lumber company, by which he can secure his proportionate part of the value of the land.
■ It -may be contended, however, that, as the legal title remained in Fortescue and was assigned to Blount, the note transferred to and foreclosed by the lumber company held a lien upon that legal title, and the foreclosure terminated the right to rescind. The fact that the note held a lien upon the land to which the legal title attached does not give the right of redemption, because the notes which Fortescue owned at the time of the foreclosure held an equal lien with the note foreclosed and there was no superiority of the lien foreclosed over that which Blount now asserts. The term “legal title,” as applied to that which was reserved to the vendor by the sale, is misleading unless it be understood with the qualification that it is not a property right in the land, but simply a trust which existed in Fortescue for the benefit of himself and of the owner of the foreclosed note equally. This trust was of a very peculiar nature, for while the title was held for the benefit of the assignee of the note, the lumber company could not have forced Fortescue to convey that title to it to enable it to enforce its own debt, nor could it have compelled him to assert the legal title in its behalf. Loan Co. v. Beckley, 93 Texas, 267. The object of redemption in this case would be to acquire the debt foreclosed so that the right to reclaim the land might be asserted. If the owner of the assigned note could not compel the trustee to execute the trust and assert the title in execution of the trust, then by what rule of right can it be held that the trustee could compel the beneficiary to assign and transfer its debt to him for his own benefit ?
The foreclosure by the lumber company did not destroy the right of rescission in Fortescue, for he parted with that when he assigned one of the notes, and the enforcement of the lien made the assertion of the reserved title impossible.
The scope of the doctrine that the vendor under a deed reserving a lien may reclaim the land if the purchase money be not paid would be greatly extended if it should be held that Blount, under the facts of this case, has the right to set aside the judgment foreclosing the lien in favor of the lumber company and sale thereunder, thereby annulling the election made by Fortescue in transferring the note and by the assignee in foreclosing and selling the land. Such ruling would disregard the rights of Douglass, acquired when the rights of rescission had been voluntarily abandoned by the original vendor. Redemption by Blount would impose upon Douglass the burden of paying the entire judgment under which he purchased the land as well as the notes held by Blount himself, or to surrender his right acquired from the original vendee and from the assignee,
■of the note and receive alone that which he had paid. It would be no less just to apply this doctrine to a case in which the vendor’s lien exists without special reservation, but our courts have held that the holders of such notes have no remedy but to enforce the debt.
Blount has not the right to redeem the land; therefore he can not recover it in this suit, but must rely upon his notes as if the lien had not been expressly reserved.
It is ordered that the judgments of the District Court and Court of Civil Appeals be reversed, and that this cause be remanded to the District Court of Liberty County with instructions to try the case upon the suit of Blount to recover upon the vendor’s lien notes and to foreclose the vendor’s lien. Swilley having no interest in the notes sought to be foreclosed nor in the land is therefore not entitled to participate in the proceeds of the sale of the land. If Blount shall recover upon one or upon both notes, and the lien of such note or notes be established, then the court should foreclose the lien and order the land to be sold as under •execution, the proceeds to be distributed as follows: 1. To the payment of the costs of the suit and the cost of sale and collecting the money (which is not intended to direct the disposition of the cost between the parties).
2.
The balance of the proceeds of the sale of the land should be divided between Blount and Douglass in the following manner: The principal of the note or notes foreclosed in this suit shall be taken to represent the interest of Blount, and the principal of the note heretofore foreclosed under which Douglass purchased shall represent the interest of Douglass, and the proceeds of the sale of the land •should be divided between the two in the ratio that these sums bear to •each other. It is ordered that Douglass recover of Blount and Swilley •all costs of the Court of Civil Appeals and of this court.
Reversed and remanded.