¶1If it be assumed that there were facts proved from which ordinarily a vendor’s lien would arise, then it must be held that the second paragraph of the charge given should not have been given. That charge authorized the jury to believe that in the opinion of the court there was evidence from which they might find that the vendor’s lien was waived. There was no evidence from which the jury would have been authorized to find a waiver of the lien, for such a lien is given by the law when one person sells land to another on credit, and is not the result of agreement, nor of a mere secret intention to reserve it.
¶2It may be waived by such facts as shown that the seller relies on other security, or relinquishes his right to the security which the law gives him; but the absence of knowledge that the law gives such a security, or a mere secret intention not to claim it, does not affect the right.
¶3The third and fourth paragraphs of the charge given would have been proper in a case in which the evidence tended to show that one had purchased and fully paid for land on which a vendor’s lien existed, without knowledge of its existence, but while in this case there is a conflict in the evidence as to whether McAllister knew of the claim of lien before he bought, yet, there is no conflict in the evidence as to the fact that, at the timé he did receive such information, he was still indebted to Dickson on the purchase money in a sum in excess of that still due the appellant on the note sued on.
¶4The evidence further shows that McAllister agreed to make no settlement or payment to Dickson until the note sued on was paid.
¶5Under this state of facts, the land would be subject to the lien unless the note executed by McAllister to Dickson, under the rules applicable to negotiable paper, was, or might be, in such condition as to impose an absolute liability on McAllister to pay it to a third person. Knowles v. Perkey, 50 Tex., 311.
¶6Whether the facts proved in this case were sufficient to establish the vendor’s lien ought to have been submitted to the jury under a proper instruction as to the state of facts which would give such a lien.
¶7If it shall appear that neither Yelvington, nor those through whom he claimed, had any valid right or interest in the land at the time the transactions occurred which are claimed to have operated a sale to Dickson, and that the land was then a part of the vacant public domain, title to which has since been perfected by McAllister, or by the heirs and widow of Robinson, then no vendor’s lien can exist unless the title has been so perfected m pursuance of some contract *82which gave right to Yelvington to have the title so perfected. To give the lien it must be shown that Yelvington had acquired such right as will cause the patent issued to the heirs of Allen Robinson on June 19, 1884, to inure to his benefit; for, as said in Palmer v. Chandler, 47 Tex., 335, “if the vendor has no valid right to or interest in the land which will pass to or vest in the vendee, he cannot claim a vendor’s lien to secure notes given in payment for it. It would be simply absurd to say that there is a vendor’s lien to secure the payment of the purchase money when the vendor had no such title or interest in the land sold as will serve as a consideration for a promise to pay the purchase money, and when the vendee may recover it back if paid.”
¶8If all the right which McAllister has in the land is that secured by the deed made to him by the widow and heirs of Robinson, then it is evident that no vendor’s lien exists to secure the note sued upon, if the entire consideration for that deed was independent of and in no way connected with any former transaction to which Yelvington was a party. '
¶9For the errors in the charge of the court the judgment will be reversed and the cause remanded.
¶10It is so ordered.
¶11Revebsed and Remanded.
¶12[Opinion delivered May 14, 1886.]