This was an action of trespass to try title brought by appellants. The property in controversy is a lot in the town of Del Rio. The petition is in the usual form.
The defendant pleaded not guilty, and specially that on the 12th day of March, 1884, onе John O’Connor was the lawful owner of the lot; that on said date the said owner made a mortgage upon the prоperty in favor of the Del Rio Building, and Loan Association, a corporation, to secure an indebtedness оf $1000, with interest at the rate of 10 per cent per annum; that said mortgage was duly recorded on the 8th day of April, 1884; that аppellants King & Fordtran on or about the 12th .day of June, 1885, caused an execution issued upon a judgment in their favor аnd against said O’ Connor to be levied upon said lot, and that they purchased it at the sale made under said exeсution; that afterward said corporation brought suit in the District Court against said ■O’Connor to foreclose its said mortgagе, and on the 24th day of April, 1886, plaintiff and defendant appearing, judgment was rendered in favor of plaintiff and against sаid O’Connor for the sum of $953.60, with interest at the rate of 10 per cent per annum, and foreclosing said mortgage; that the shеriff sold said property, as the law directs, under an order of sale issued upon said judgment; that at said sale .said corporation purchased said lot for the sum of $1025; which sum having been credited on its judgment, the sheriff, on the 7th day of July, 1886, made to the purchaser a deed for the lot, which was duly recorded on the 26th day of October, 1886; that afterward, on the 9th day of May, 1889, the sheriff of Val Verde County levied an execution against the said corporation, issued upon a judgment rendered against it in the District Court of said county, upon said lot as the property of the said corporatiоn, and, proceeding as the law directs, sold said lot under said execution; that defendant became the purсhaser at said sale, and having paid the purchase money received from the sheriff a deed for the prоperty; that plaintiffs have never paid off nor offered to pay off said mortgage debt. The defendant prаyed that if the plaintiffs failed to *278 discharge said mortgage debt that' the mortgage be then foreclosed in his favor and the property be sold to satisfy the mortgage debt.
The plaintiffs filed exceptions to the answer, which were overruled by the court, one of them being that defendant’s cause of action was barred by the four years statute of limitation. The cause was tried without a jury and a decree was rendered foreclosing the mortgage in favor оf the defendant for the sum of $953.60, without interest, and directing that if the property, when sold under the order of sale directеd to be issued to enforce the decree, should bring more than enough to satisfy the last named sum and'the costs adjudged in favor of the defendant the excess be paid to plaintiffs.
The court’s findings of fact and the evidence substantiаlly support the special answer of the defendant.
The only errors assigned relate to the ruling of the court uрon plaintiffs’ exceptions to the defendant’s answer. It has been repeatedly decided by this court that wherе a mortgagor’s equity of redemption or legal title to land is sold to another, that a suit to foreclose the mоrtgage against the mortgagor without making the purchaser of his title a party and a decree of foreclоsure and sale have no effect upon the title of such purchaser when there exists either actual or constructive notice of his purchase. Byler v. Johnson,
As O’Connor had been divested of the legal title the decree of foreclosure against him and the sale made under it did not have the effect of investing the purchaser at thаt sale with such title. It remained in plaintiffs as purchasers of it at execution sale against him. The deed to them had bеen duly recorded. But while the foreclosure proceedings failed to divest their title they did not have the effeсt of conferring upon plaintiffs any other or different right to the land than they had previously had. They held the, title subject tо the mortgage afterward as they did before. While the foreclosure suit to which they were not made parties did nоt deprive them of their right as purchasers of the legal title to discharge the mortgage by paying the debt, it did not on the other hand free the land of the debt and give to them an unincumbered title.
Notwithstanding the judgment against O’Connor had no validity оr effect as to the foreclosure of the. mortgage, it was a good personal judgment, establishing, as against him, thе amount of the debt and removing the operations of the statute of limitations upon the original cause of аction. Beck v. Tarrant,
The case of Morrow v. Morgan,
“The defendants may, on filing proper pleadings in the nature of a cross-bill, be subrogated to the rights of the mortgagor to the extent of the purchase money paid at the foreclosure sale, and may thus put it in the power of the court to сompel the plaintiffs to adjust their equitable claims on the land.”
The judgment rendered in this cause.was scarcely sо favorable to the defendant as to the amount of his recovery as the rule above suggested would have warranted. As he does not complain of the judgment, and as we find no error against the appellant, it will be affirmed.
Affirmed.
Delivered March 17, 1891.
A motion for rehearing was made by appellant.
B. L. Aycock, for motion.
H. C. Carter, resisting.
The motion was transferred to Austin and there refused.