On .or about July 18, 190¿, appellee, Zula B. Herron, joined, by her husband, J. H. Herron, now deceased, conveyed to appellant, Leе Cortimeglia, a tract of land, and took in part payment therefor 12 vendor ■lien notes, falling due one each-year; the last one falling due January 1, 1920. A part of these notes were paid, and others were twice duly extended by proper recordеd written extensions; there being, under the last written extension, six notes falling due one each year on November 15th, the first falling due November 15, 1924, and one on the 15th of each November thereafter, the last one falling due November 15, 1930. All of said notes contained the accelerated maturity clause, and said extensions were duly signed and acknowledged by appellant, Lee Corti-meglia. On Dеcember 29, 1909, appellant Lee Cortimeglia sold and conveyed to his brother, Tony Cortimeglia, 50 acres of the land so purсhased by Lee Cortimeglia from appellee, Mrs. Herron.
Appellant Lee Cortimeglia having made default in the payment оf the vendor’s lien note falling due November 15-, 1924, appel-lee declared all of said notes due, and brought suit against Lee Cortimеglia for the amount due on said notes, and to foreclose the vendor’s lien on all of said land, and made Tony Cortimeglia a party; alleging he was claiming some interest in said land. Lee Cortimeglia answered by a general demurrer and a general denial. Tony Cortimeglia answered, alleging, in substance, that ap-pellee, at the time he bought said 50 acres, agreed to releasе said 50 acres from her vendor’s lien, and he also pleaded the 5 and 10 years statutes of limitation -as to said 50 acres. The court submitted the case on special issues, and the jury found as follows;
(1) That Mrs. Herron, in conveying the land described .in plaintiff’s petition to Lee Cortimeglia, did retain a vendor’s lien to secure the payment of the purchase money.
(2) That Mrs. Herron now has a valid and subsisting lien against said land for the payment of the balance of the purchase money.
(3) That Mrs. Herron did not make and enter into an agreement with Lee Cortimeg-lia to release from the vendor’s lien the 50' acres of land described in the defendant Tony Cortimegliа’s answer upon the payment to her' by said Lee Cortimeglia of the purchase money recited in the deed of conveyance from Lee Cortimeglia to Tony Corti-meglia.
(6) That Tony Cortimeglia did repudiate the vendor’s lien and superior title held by the plaintiff in said 50 acres of land.
. (7) That the said Tony Cortimeglia so repudiated said lien and superior title to said land in plaintiff when his deed was recorded December 31, 1909.
(8) That defendant TOny Cortimeglia has. been in the actual, peaceable, and adverse possession of said 50 acres of land under title or color of title, using and enjoying the same during a continuous period of 5 years from the dаte of said repudiation to the institution of this suit.
(9) That the defendant has been in the actual, peac'eable, and adverse possession of *306 said 50 acres of land, using and enjoying tlie same, during a continuous period of 10 years from the date of said repudiаtion to the institution of tliis suit.
Both appellants and appellee filed motions to enter judgment in their favor on said findings of the jury. The court concluded said findings were contradictory, refused to enter ■judgment for either side, and declared a mistrial, from which action оf the court appellants prosecute this appeal.
Opinion.
Appellee presents a motion to dismiss this appeal because unauthorized by any law of this state. Appellants contend they have the right to maintain this appeal under the prоvisions of the Acts of the Thirty-Ninth Legislature, chapter 18, page 45, General Laws of 1925; same now being a part of article 2249, Revised Stаtutes of 1925. The record does not disclose the date when either of the motions was filed, but does disclose that on June 19, 1925, the court heard both of said motions, and overruled both, refusing to enter judgment for either party on the ground that the findings of the jury were conflicting, аnd declared a mistrial. The act of the Legislature relied upon by appellants to authorize their appeal beсame effective June 17, 1925, so said act was in effect at the time the court entered his order refusing to enter judgment for either party and declaring a mistrial, and so the only question involved in this motion is, Does this action of the court come within the purview of said act providing that “an appeal may be tahen to the Court of Civil Appeals from every order of any district or county court in civil cases, granting motions for new trial?” etc.
In most jurisdictions, where provision is made for submission of special issues to the jury in lieu of а general charge, it is permissible and proper, after a jury returns their special findings, for both sides to present motions for judgment on the findings of the jury, and, after said motions have been acted upon by the court and judgment rendered, then for the losing party to present his motion for a new trial. Such is the practice in this state. 29 Cyc. 726; A., T. & S. F. Ry. Co. v. Holland,