The opinion
ON APPELLANT’S MOTION FOR REHEARING
DICE, Judge.
Appellant insists that in our original opinion we misinterpreted the provisions of the title binder in holding that the failure to list the outstanding $8,000.00 lien as an exception under Schedule B constituted such a misrepresentation as would support his conviction. Appellant contends that the title binder only provided that a title policy would be issued insuring Foster & Company, the mortgagee, from any loss of its $10,500 loan by reason of title defects; that if the $8,000.00 lien had been listed in Schedule B as an exception it would not have been insured against and by not listing the same Foster & Company was insured from any loss by reason of its existence.
While appellant’s interpretation of the provisions of the title binder be correct that the failure to list the $8,000.00 outstanding lien as an exception under Schedule B had the effect of insuring the loan of the mortgagee against the lien, such fact *15 is not controlling on the question of his guilt. The controlling question is whether the issuance of the title binder upon a fictitious sale omitting to list the outstanding lien constituted a misrepresentation to the injured party.
We have again reviewed the record in the light of appellant’s contention and remain convinced that in transactions between the parties it was contemplated that all outstanding liens against the property would be shown in the title binder under Schedule B and that the loan insured by appellant would be secured by a first and valid lien on the property. In furnishing the title binder without listing the prior outstanding lien appellant represented that there was no outstanding lien against the property, which representation was false and relied upon by the injured party in issuing the check, the proceeds of which were appropriated by appellant.
The motion for rehearing is overruled.
Opinion approved by the Court.