On Rehearing.

After a careful examination of the record and briefs of counsel in this cause, no sufficient reason, as we think, is shown why the motion for a rehearing should be granted.

The land purchased by Dibrell at sheriff’s sale on the judgment and execution in favor of. himself and C. C. Dibrell against Erskine is subject to the payment of Erskine’s note to Smith. Dibrell by his purchase took it subject to the 'debt, and the decree should be rendered so as to make Erskine’s part of the land purchased by Dibrell at sheriff’s sale liable to the extent of satisfying Erskine’s note, without a personal judgment against Dibrell for its payment.

Dibrell, having purchased under an execution in favor of himself, with notice that the note was unpaid, cannot be regarded as a purchaser who has advanced a valuable consideration on the faith of his purchase. The note in *450question was given long after the execution of the mortgage by St. Clair to Smith, and could not be merged in it.

Erskine and Dibrell were bound for the payment of the whole [purchase money before it was agreed to look to each for his share of one-half.

Erskine testifies that nothing was said about a lien at the time he gave his note. Smith says Dibrell told him that the land would be bound for all the unpaid purchase money.

As the case will be reversed and remanded, the parties will have the opportunity of offering further proof on the question, if desired.

Motion refused.

Judge Peter W. Gray resigned April 18, 1874.

We have no doubt of the correctness of the decision of this case as reported in 31 Texas, 239, on the facts as the case was then presented to the court; but there are other principles drawn into this case which were either not before the court, or which are not considered in the reported case.

Smith took upon himself the risk of violating the law by releasing the mortgage which secured his trust fund. He has honorably met that risk by assuming and paying the debt to his wards ; he is no longer a trustee for them-in this behalf ;. in his relation to the appellees, he is completely divested of his fiduciary capacity, and he in this case must be held as any other person acting sui juris.

In this view of the case we are of opinion that he cannot hold Dibrell for Erskine’s debt. But there may be a question whether the land purchased by Erskine, and now owned by Dibrell, is not bound by a vendor’s lien, *449unless it should be held that the vendor’s lien was lost by the taking personal security, or that it was merged into the mortgage and expressly released.

Should it appear that Dibrell has been guilty of any fraud in procuring the release of a mortgage by Smith, in order that he might seize upon Erskine’s share of the land and sell it to pay a debt to himself, equity might uncover and redress such a transaction.

The judgment of the District Court must be reversed and the cause remanded.

Reversed and remanded.

Opinion rendered October 14, 1873.

Motion for rehearing continued.