The opinion
On Motion for Rehearing.
Defendants have filed three motions, one for rehearing, one for additional findings, and one to certify to the Supreme Court. The reason why we are asked to certify this case is stated in the motion as follows: “That the holding in this case as to the effect of Murray Company v. Simmons (Tex. Com. App.) 229 S. W. 461 , is to make unrecorded reservations of title good as against subsequent lien holders in good faith. * * * ”
This same interpretation of our original holding appears throughout the argument in support of the motion for rehearing. Since that interpretation is so different from the meaning which we thought we were conveying in our original opinion, we shall briefly restate our holding, as follows:
Defendants acquired a lien upon, and later a trustee’s deed to, certain lots of land. The only claim they have to the burr extractors is by virtue of the deed of trust and trustee’s deed. If these machines were a part of the realty when the deed of trust was executed and delivered, they passed thereby to the trustee and later passed by the trustee’s deed to defendants. If they were not, in fact and law, a party of the realty described in those instruments, then they did not pass thereby. Under the express holding of our Supreme Court in the case of Murray Co. v. Simmons, 229 S. W. 461 , they never actually became a part of the realty, for the reason that the contract of purchase between plaintiff and Brown, the then owner of the realty, fixed and determined their status as personalty until the purchase price therefor should be paid. That price has never been paid. Defendants cannot invoke the doctrine of subsequent lien-holders or purchasers in good faith, because they are neither subsequent lienholders nor purchasers of this personalty. Had it been the intention of Brown and defendants to incumber this machinery with a lien, that intention could have been easily accomplished by merely describing the property covered thereby so as to include all machinery situated on the lots described, in which event defendants would have been protected. The fact that in the instant case additional money was advanced by the defendants to Brown on the occasion of the execution of the renewal deed of trust under which they derived title, while in the Simmons Case no additional advancements were made at the time of renewal, cannot, in our opinion, distinguish the two cases. If the intention as expressed in the purchase contract determines the status of this property as personalty, as we understand the Simmons Case to hold, then the existence of that intention can be in no wise affected by the additional consideration involved in the renewal.
We are requested to make certain additional findings of fact. This case was tried below before the court without the aid of a jury. No findings of fact are contained in the record, but judgment was rendered in favor of defendants. In support of such judgment we presume that all facts were found in favor of the defendants which have any support in the evidence. We therefore make, as our findings of fact, any and all facts favorable to the defendants having any evidence to support them in the record. Wherever there is a disputed fact in the record, we hereby find for the defendants thereon.
The motion to certify does not suggest any question which it is desired that we submit to the Supreme Court. As disclosed by our opinion, we think we have followed the holding of the Supreme Court in the case of Murray Co. v. Simmons, supra, and a prior holding of the Court of Civil Appeals in the case of Willis v. Munger Improved Cotton Machine Mfg. Co., 13 Tex. Civ. App. 677 , 36 S. W. 1010 (error refused)^ which latter case was cited with approval in the former case. Counsel for defendants believe that we *750 have Improperly interpreted these holdings, ■and that our holding herein is unsound. We have given them the benefit of complete findings of fact, as it was our duty to do, and the question can as well be presented to the Supreme Court by application, for writ of error as by certificate.
The motion to certify is therefore overruled. The motion for additional findings is granted in part, as disclosed above, and the motion for rehearing is overruled.