HADB, C. J.
On April 24, 1917, W. R. Ozier purchased 10,000 acres of land situated in Hutchinson, Potter, and Moore counties, Tex., and as part consideration therefor, executed four vendor’s lien notes, aggregating $52,719.32,, which stipulate lor interest at 6 per cent., and Í0 per cent, attorney’s fees. The first note was due in six months, and the others in one, two, and three years after date, respectively. At the same time he executed a deed of trust upon the land to secure the payment of the notes. This instrument was duly recorded in Moore county September 14, 1921. On January 29, 1924, Master-son transferred these notes and liens to the appellee Perkins, who instituted this suit February 23, 1924, to recover the amount due, and prayed for a foreclosure of his purchase-money lien upon the entire tract of land.
On August 12, 1921, W. R. Ozier was also indebted to W. O’Brien and the National Bank of Commerce in the principal sum of $29,092.13, for which he executed and delivered his five promissory notes, which provided for 10 per cent, interest and 10 per cent, attorney’s fees. At the same time he executed a deed of trust upon the west one-half of the 10,000 acres of land mentioned above to secure said notes. The 5,000 acres included in the west half are situated in Potter and Moore counties.
On August 29, 1922, the National Bank of Commerce' filed suit in the district court of Potter county, said ease being numbered 3652 on the docket of said court, to recover upon the five notes last above described, and to foreclose its deed of trust lien upon the west half of the land. Ura Embry, the trustee in-said deed of trust, and W. P. Graham, who signed two of the above-described notes with W. R. Ozier, were also made parties defendant. The bank filed an amended petition in said cause No. 3652 on November 7, 1922, making T. A. Curtis, as trustee, an additional defendant, for the reason that on September 8,'1922, after its original petition was filed, W. R. Ozier had executed and delivered to T. A. Curtis, as trustee, a deed of trust on the entire 10,000 acres in question, to secure certain of his creditors named as follows: Dee Bivins, J. B. Ozier, J. W. Ozier, Guaranty State Bank of Amarillo, Amarillo Bank & Trust Company, City National Bank of Amarillo, Amarillo National Bank, Interstate National Bank of Kansas City, and the Interstate Cattle Doan Company of Kansas City. The amount of his indebtedness to these parties is not stated in the instrument. Before the trial of that case the Guaranty State Bank, Dee Bivins, and the Interstate Cattle Doan Company intervened and became parties defendant.
On April 12, 1923, judgment was rendered in said cause No. 3652, decreeing: (1) That the National Bank of Commerce recover of W. R. Ozier and W. P. Graham the amounts shown to be due by their notes, and that i.ts deed of trust lien be foreclosed upon the west half of the land, subject to the prior purchase-money lien originally given by Ozier to Masterson; (2) that the Guaranty State Bank, Dee Bivins, and the Interstate Cattle Doan Company recover of defendant Ozier the amounts due them respectively, with foreclosure of the deed of trust lien given to Curtis, as trustee, subject to the Masterson purchase-money lien upon all the land, and also subject to the deed of trust lien given to the National Bank of Commerce as to the west half of the land; and (3) that the west half be sold free from the claims of Bivins and the other claimants
under the Curtis deed of trust, and that the proceeds be applied as follows:
“First, to the payment of all costs in this behalf expended, including the costs of such sale, and the remainder shall be applied to the payment of plaintiff’s debt against the said Ozier and Graham as partners, and W. R. Ozier individually, and, if the same shall not be sufficient to satisfy and discharge said debt, then plaintiff shall have execution, for the remainder thereof, as is provided by law. But, should the proceeds be more than sufficient to satisfy plaintiff’s debt, then the remainder shall be turned over and delivered to the defendant T. A. Curtis, to be by him held subject to the trust deed or assignment under which he holds, as though a part of the proceeds of a sale conducted by him of the property described in the trust deed set up in this answer; that the purchaser of said land at such sale be by the officer placed in possession thereof within 30 days after the date of sale; that the deed of trust or assignment, dated the 2d day of September, 1922, by which the defendant W. R. Ozier conveyed his lands to T. A. Curtis to secure the payment of certain debts therein recited, be and the same is hereby fixed and established as a good and valid lien on all of the lands therein described, other than that upon which, plaintiff’s prior lien is hereby foreclosed, and upon any excess there may be of the proceeds of the sales of the land upon which plaintiff’s prior lien is hereby foreclosed, over and above what is required to pay costs of suit, including foreclosure and sale and plaintiff’s debts as aforesaid, to secure the payment of interveners’ several debts, as is herein recited, fixed, and established, and that said defendant T. A. Curtis and said interveners, the Guaranty State Bank of Amarillo, Tex., Lee Bivins, and the Interstate Cattle Loan Company, a corporation, be and they are hereby discharged to go hence with their rights so decreed and established, and with their costs.”
Order of sale was duly issued upon this judgment, in virtue of which the west half of the land was sold by the sheriff of Moore county on August 7, 1923. O’Brien became the purchaser at this sale for the sum of $25,500, and the sheriff conveyed him the property. The amount of his bid, less the costs, was credited on the judgment. After the sale, the National Bank of Commerce transferred to O'Brien the unsatisfied part of the judgment and interest, and nothing has since been paid him upon it.
As before stated, the appellee Perkins filed this suit February 23, 1924, and thereafter, on March 31, 1924, filed his second amended original petition, upon which the ease was tried, making the Sinclair Consolidated Oil & Gas Co., T. A. Curtis, W. R. Ozier, J. B. Ozier, J. W. Ozier, Lee Bivins, W. O’Brien, Amarillo National Bank, Interstate National Bank, Interstate Cattle Loan Company, Guaranty State Bank of Amarillo, Amarillo Bank & Trust Company, Edwin E; White, Finley Scruggs, Jr., A. W. Kay, O. B. Dodge, A. A. Mail, M. W. Cunningham, Fred Stubbins, L. S. Zily, Sinclair Oil & Gas Company, The Humble Oil & Refining Company, the Amarillo Oil Company, J. L. Summers, the Guardian Savings & Trust Company, Louis B. Foots, H. A. Nobles, M. C. Nobles, and C. T.' Herring parties defendant.
The pleadings are voluminous — covering 184 pages of the transcript. For the sake of brevity, we will not undertake to make a detailed statement of the numerous issues tendered by the various' parties, and will only refer to such portions of the pleadings as may become necessary in considering the contentions urged here.
The case was tried by the court without a jury. In so far as the decree is material to this appeal, the judgment is that the ap-pellee Perkins recover a judgment against Ozier for the sum of $67,764.36, and have a foreclosure of his vendor’s lien upon the land described in the petition. The Guaranty State Bank of Amarillo recovered judgment against
W.
R. Ozier in the sum of $4,147.38 ; the Interstate National Bank recovered a judgment against Ozier in the sum of $3,000; the Interstate Cattle Loan Company recovered a judgment against him in the sum of $30,-000; and judgment was also rendered against him in the sum of $16,112.75 in favor of J. M. Shelton-. The judgment directs the issuance of an order of sale, commanding the sheriff or any constable of Moore county to first sell the east half of the lands in controversy as under execution, and further directed him to apply the proceeds of the sale: (a) To the payment of costs; (b) to the payment in full of the plaintiff Perkins’ debt; and (e) to the payment in full of the debts of each of the defendants Guaranty State Bank of Amarillo, Interstate National Bank, Interstate Cattle Loan Company, intervener J. M. Shelton, and the remainder, if any, to be paid to the defendant W. R. Ozier; but, if said portion of said land does not sell for a sufficient amount to pay the debts in the order named in full, then the remainder, after paying all costs and plaintiff’s debt, should be prorated “and paid to said three defendants and intervener in proportion to their debts.” The judgment further decreed that, if the east half of said land should not sell for enough to pay the costs and plaintiff’s debt in full, then^that he sell the west half, and that the proceeds of’the sale thereof be applied as follows: First, to the payment of costs; second, to the payment of plaintiff’s debt; third, the remainder, if any, to be paid to intervener J. ¡M. Shelton. The judgment then recites the fact that the National Bank of Commerce recovered judgment on the 12th day of April, A. D. 1923, in cause 3652 against Ozier , in the sum of $35,281.30, with interest, and a foreclosure of the deed of trust lien upon the west half of the land; and further recites the sale of the west half in virtue of said judgment
and the purchase of the land by O’Brien at said sale for the price of .$25,500, and continues as follows:
“And, it further appearing to the court that the intervener J. M. Shelton is entitled, under his cross-action against the defendant W. O’Brien to redeem said lands, and the balance of said judgment upon his paying to the defendant W. O’Brien the sum of $39,497.39, and it further appearing to the court that on the 2Sth day of May, 1924, the intervener J. M. Shelton tendered into court, for the purpose of making said redemption, said sum of $39,497.39, which is the total amount due on the above judgment, including principal, interest, attorney’s fees, and all costs to date, and that said amount was by him paid into the registry of this court, and is now held by the clerk of this court, it is therefore ordered, adjudged, and decreed by the court that said intervener J. M. Shelton be and he is hereby granted and given an equity of redemption as to and against the defendant W. O’Brien, and the right to redeem said lands from the said defendant W. O’Brien. It is further ordered, adjudged, and decreed by the court that all right, title, interest, and estate in and to said lands and judgment be and the same is divested out of the defendant W. O’Brien and invested in the intervener J. M. Shelton, and that the said J. M. Shelton be subrogated to all the rights of the said W. O’Brien in and under the balance of said judgment, and it is further ordered, adjudged, and decreed by the court that the said sum of $39,497.39 so tendered into this court be by the clerk of this court paid to the defendant W. O’Brien.”
From this judgment O’Brien, the Guaranty State Bank, and the Interstate Cattle Loan Company and the Interstate National Bank gave notice of appeal. The Interstate National Bank filed no appeal bond or assigned any errors. The other named appellants are properly before this court.
The first contention by O’Brien to be disposed of is that the instrument executed by. W. R. Ozier to Curtis as trustee is an assignment for the benefit of his creditors rather than a deed of trust. We cannot sustain this proposition. A careful consideration of the instrument itself convinces us that it is neither a statutory nor a common-law assignment for the benefit of creditors. \ It does not provide that the trustee shall take possession of the property. It impliedly provides that possession shall remain in the grantor Ozier, since the duty of caring for, paying taxes upon, and keeping the premises in good condition is imposed upon the grantor. It does not convey all of the grantor’s property which is not exempt. It authorizes the trustee to sell, only in the event the grantor shall fail to pay the creditors named in it, and under this provision Ozier might have defeated the instrument and reclaimed the property from Curtis at any time before sale by the latter by paying-the creditors. It provides that any residue after the payment of the named creditors shall be paid to the grantor, and we cannot presume from reading it that the grantor was wholly insolvent when he executed it. It must, therefore, be construed simply as a deed of trust lien. Watterman v. Silberberg, 67 Tex. 100, 2 S. W. 578; Scott v. McDaniel, 67 Tex. 315, 3 S. W. 291; Tittle v. Vanleer, 89 Tex. 174, 29 S. W. 1065, 34 S. W. 715, 37 L. R. A. 337; Collins v. Sanger, 8 Tex. Civ. App. 69, 27 S. W. 500; H. T. Simon-Gregory D. G. Co. v. Dean (Tex. Civ. App.) 35 S. W. 305; Hall v. Conine (Tex. Civ. App.) 230 S. W. 823.
The next contention by O’Brien is that the court erred in permitting Shelton to redeem the west half of the land and O’Brien’s judgment by tendering into court the amount of said judgment and interest after O’Brien had purchased the property under his foreclosure sale, and further erred in that part of the judgment which divests O’Brien of the title to the land and vesting title thereto in Shelton. We think this contention is sound. The facts and pleadings pertinent to this issue are briefly stated as follows: After the National Bank of Commerce, through which O’Brien claims, filed its suit against W. R. Ozier, W. P. Graham, and the trustee Embry on September 8, 1922, for the recovery of its debt and the foreclosure of its lien upon the west half of the land, Ozier executed and delivered to Curtis, as trustee, the deed of trust above discussed for the benefit of certain creditors, among whom was the Amarillo National Bank, through which Shelton’s claim is derived. An officer of the Amarillo National Bank testified that this instrument was' given to secure Ozier’s indebtedness to the bank, which had existed for several months prior thereto, and which was evidenced by two notes in favor of the bank. He further testified that at the time the Curtis deed of trust was executed he did not know that the National Bank of Commerce had filed a suit, but that Ozier told him about the suit being filed before citation was served on Ozier about September 20, 1922. As stated, the National Bank of Commerce filed its first amended original petition in said suit No. 3652 on November 7,1922. This amended petition is identical with the original petition, except that it makes Curtis, as trustee, a party defendant. The Amarillo National Bank was never made a formal party, but, together with the Interstate Cattle Loan Company, the Guaranty State Bank, and Bivins, appeared and answered. By its answer, the Amarillo National Bank alleged that it had sold and assigned the Ozier notes, and all of its interest under the Curtis deed of trust to Shelton, and prayed that Shelton be substituted as a party defendant.
On February 28, 1923, Shelton filed his plea of intervention, setting up the Curtis deed of trust, the Embry deed of trust, the judgment foreclosing said deed of trust, and the purchase of the west half of the land under foreclosure sale by O’Brien. He alleged that
the Ozier notes had been transferred to him by the Amarillo National Bank, and were the renewal of former notes which Ozier owed the Amarillo National Bank, and which were referred to in the Curtis deed of trust. He tendered into court, to be paid to O’Brien, a sufficient sum of money to pay off the original judgment which the National Bank of Commerce had recovered against Ozier in cause No. 3652, together with all interest and costs of that suit, and prayed that he be permitted to redeem the land from O’Brien, and that the judgment in favor of the National Bank of Commerce against Ozier be assigned to him, and that he be subrogated to all the •rights of O’Brien in said land and undqr said judgment. As shown above, the judgment of the court decrees that O’Brien shall accept this tender by Shelton to the extent of the full amount of his judgment, interest, and costs, and then proceeds to divest O’Brien of all title and interest in and to the west half of the land and the judgment, and vests the same in Shelton.
It will be seen that in the decision of this complex question the equitable doctrines of redemption, marshaling securities, • and subrogation as between O’Brien and Shelton are involved. In the first place, the judgment is erroneous, in that it gives Shelton the right to redeem the land instead of limiting his right to a redemption of O’Brien’s lien only. Ozier did not convey the land to Curtis or any one else. As long as he held the title, he alone could redeem the land itself from the lien of the Embry deed of trust. The purchase by O’Brien at the execution sale absolutely barred Ozier’s right to redeem the west half of the land, and thereafter Ozier had no interest whatever in it. By the sale, his equity of redemption with the fee passed to O’Brien. Russell v. Campbell (Tex. Civ. App.) 32 S. W. 858; Willis v. Smith, 72 Tex. 565, 10 S. W. 683, 17 S. W. 247; St. L., A. & T. R. Co. v. Whitaker, 68 Tex. 630, 5 S. W. 448. The rights of Shelton, as a junior incumbrancer, as against O’Brien, the prior incumbrancer, who has foreclosed his lien without making the junior incum-brancer a party to the action, and who has acquired the title at the execution sale, are clearly set out in 2 Jones on Mortgages (7th Ed.) § 1075, in the following language:
“A junior incumbrancer who, not having been made a party to a foreclosure of a prior mortgage, afterwards redeems, redeems, not the premises strictly speaking, but the prior in-cumbrance; and he is entitled, not to a conveyance of the premises, but to an assignment of the security.. -Therefore, if the prior mortgagee in such case has become the purchaser at the foreclosure sale, and has thus acquired the equity of redemption of the mortgaged premises, the junior mortgagee, upon redeeming, is not entitled to a conveyance of the estate, but to an assignment of the prior mortgage. Whereupon a prior mortgagee, as owner of the equity of redemption, may, if he 'choose, pay the amount due upon the junior mortgage, redeeming that. The decree in such case Would be that the junior mortgagee redeemed the first mortgage; that the first mortgagee, as owner of the equity of redemption, redeemed from the junior mortgage, and, if he failed to do so, that the premises be sold, and out of the proceeds there be paid, first, the first mortgage and interest, together with any claim for repairs the prior mortgagee may have made upon the premises while in possession, second, the remainder to the payment of the second mortgage' and interest upon it, and, in case there be a surplus, this is to be paid to the first mortgagee, as the owner of the equity of redemption.”
We think this is the judgment which should have been entered in this ease, and that the judgment as entered is inequitable to O’Brien. Equity aids the vigilant. The vigilance of O’Brien is manifested in securing the first mortgage and in its prompt foreclosure. The want of vigilance on the part of the creditors named in the Ourtis deed of trust is apparent from the fact that it was not. obtained until after O’Brien had filed his suit. Its execution seems to have been initiated by Ozier. Only two of the creditors accepted under it, and Shelton’s assignor, although one of the creditors, with knowledge that the suit had been filed, did not intervene and assert its rights in that action. It does not appear that either of them attended the sale or bid for the property at the time O’Brien purchased it. The want of equity in the judgment as rendered, if compared with the absolute equality of a judgment rendered in accordance with that outlined by Mr. Jones above, is illustrated by the following statement:
Suppose that the debtor, Ozier, realizing that he could not pay off the Embry mortgage, but suspecting that the land contained oil or other valuable minerals, had gone to the Amarillo National Bank and -proposed to give them a subsequent mortgage to secure a fictitious debt, with the understanding that said bank’s lien should be kept secret until after O’Brien had foreclosed and purchased the property, and had in the course of time developed the mineral resources, thereby enhancing the property, at great expense, to many times its original value, and with the further understanding that, if minerals were discovered, the bank would file a suit to foreclose and redeem the land and divide it with Ozier. To state the proposition is to show its manifest injustice to a diligent creditor. By law O’Brien would be invested with the legal and equitable estate,'yet'a court of equity would divest him of the fruits of his labor and enterprise, and, instead of equity following the law according to the well-recognized maxim, wé would have a case where the la-w would be set aside and its title abrogated in the interest of those who have not been diligent. It would open the door for the rankest fraud. It would be permitting Ozier to exercise, indirectly, through the
bank, a second equity of redemption — wbicb bas never been permitted. After O’Brien purchased the land and acquired with it Ozier’s equity of redemption, he had the right to redeem from Shelton by the payment of the latter’s notes. It is true that he did not by his pleadings pursue this course. He is, nevertheless, in the eyes of the chancellor, the holder of the legal title and the superior equity, and is entitled, under the doctrine of marshaling securities, to have Shelton sell the east half of the land first, and, if the proceeds do not satisfy the junior incum-brance, when the west half is sold by Shelton, the excess, if any, should be paid to O’Brien, who, by his judgment and sale, has succeeded to all^he rights of his mortgagor Ozier. In the section referred to above Jones refers to the case of Collins v. Riggs, 14 Wall. 491, 20 L. Ed. 723, in which Judge Bradley, after declaring the rights of the junior incumbrancer to redeem by paying the whole of the mortgage debt, says:
“The money will be subject to distribution between the mortgagee and the purchaser, in equitable proportions, so as to reimburse the latter his purchase money and pay the former the balance of his debt.”
In the instant case the mortgagee, O’Brien, is also the purchaser, since he has never sold the land after he acquired it, and is, therefore, under that authority, entitled to all. of the excess after Shelton’s debt has been paid, who, as stated above, must resort first to the east half for that purpose.
If Shelton had sued Ozier in a separate action without making O’Brien a party, and after judgment he had been tendered the amount of his recovery, he could not refuse to accept it and maintain a suit against O’Brien to redeem. Murphy v. Farwell, 9 Wis. 102, so holds, and bases the decision upon the legal conclusion that the purchaser under the first mortgage sale acquired the entire interest represented by that mortgage, including the mortgagor’s equity of redemption, and that the purchaser under the second mortgage acquired only the interest represented by that mortgage-^-which was to collect his debt. In adjusting the equities in this case, it is important that the distinction which is recognized to exist between cases wheré a junior lienor seeks to redeem from a senior lienor, and cases where a junior lienor attempts to redeem from a senior lien- or who has foreclosed the'owner’s equity of redemption and acquired that right by the purchase of the fee under his sale, be kept in mind. In cases of the first class the senior mortgagee is only entitled to his debt, and the mortgagor still has his equity of redemption as against both mortgagees. In cases of the second class the senior mortgagee has by his purchase acquired, not only the fee as against the defaulting mortgagor, but also his right to redeem the premises from the second mortgagee by paying the amount due him. The judgment in the instant case reverses this rule, and rewards the junior mortgagee for his laches, and makes it possible for a defaulting mortgagor, who has been .foreclosed, to acquire a second right to redeem through a fraudulent conspiracy with, a junior lienor, who has not foreclosed and purchased anything. This distinction is clearly recognized by Judge Gaines in McDonald v. Miller, 90 Tex. 309, 39 S. W. 89, and in Gamble v. Martin, 60 Tex. Civ. App. 517, 129 S. W. 386.
In the case of Davis v. Walker (Tex. Civ. App.) 233 S. W. 521, 524, Judge Dunklin, 'in discussing the McDonald Case, said:
“It was held that a holder of a junior lien, who is not made a party defendant to a foreclosure of a prior lien, has no right to pay off the senior lien and take over the property until such junior .lien holder first forecloses his hen and buys the equity of redemption under such foreclosure.”
Now, let’s apply that principle to the instant ease: Even if O’Brien had not foreclosed, Shelton could not redeem the land itself by tendering O’Brien the amount of his debt, because the right to redeem the land was still in Ozier, and abided there until one or the other of his mortgagees had purchased it under a judgment of foreclosure. ‘ Until Shelton had foreclosed and purchased Ozier’s right to redeem the land from both . mortgages, he could only redeem the security represented by OiBrien’s mortgage, or, to express it differently, his sole right as against O’Brien was to pay off the latter’s debt and be subrogated to' his lien, and, even then, Ozier would still have the right to redeem, from Shelton by paying him the amount of both incumbrances. But that is not the case before us. Here, as shown above, all of Ozier’s rights have passed by the sale to O’Brien, subject only to the superior lien of Perkins and the equitable right of Shelton -to revive and redeem O’Brien’s mortgage and sell under it. If the rule contended for by Shelton and decreed by the judgment prevailed, then, in cases where there are several mortgagees, it would be to the interest of those holding prior and superior mortgages and equities to defer action until junior and inferior lienors had foreclosed and bought in the land, with the mortgagor’s equity of redemption, and then tender the last purchaser his debt and force him to disgorge. The most dilatory lienor would be the one highest favored. Such a rule would place a premium on laches, arid provide an opportunity for perpetrating the grossest frauds. As said in Renard v. Brown, 7 Neb. 454:
“The defendants [junior lienors] claim the right to redeem the land and not the mortgage of the plaintiff [senior lienor, who has fore
closed Ms Ken and purchased the land]. The rule is well settled that the rights of those incumbrancers who were not made parties to the suit are not affected by the decree. [Citing authorities.] But the right to redeem is not to secure a conveyance of the land, but to redeem a senior incumbrance, and the party redeeming is entitled, not to a conveyance of thq premises, but to an assignment of the security. Pardee v. Van Anken, 3 Barb. [N. Y.] 537; Miller v. Finn, 1 Neb. 301. The purchaser of land at a judicial sale is protected in his title, subject only to the payment of the incumbranc-es upon it. If a party holding a junior mortgage may redeem the land, by simply redeeming the mortgage security, then he is placed in a much more favorable situation than the purchaser of the equity of redemption. His in-cumbrance may be of the most trifling character, yet, if he may redeem the land he may obtain for a trifling sum property many times the value of his incumbrances. But such is not the law. The right of redemption is said to be a correspondent right to that of foreclosure, and a junior mortgagee may insist upon a redemption of the senior mortgage, in order to the due enforcement of his claims in the land. When he does redeem he becomes substituted to the rights and interests of the original mortgagee in the land. Story’s Eq. § 1023. The owner of the fee of the equity of redemption redeems the land itself, and the decree in such case directs the mortgagee to convey all his right and title to the premises to the redeeming party. * * * The owner of a junior incumbrance redeems, not the premises, strictly speaking, but the senior incumbrance; and then he is entitled, not to. a conveyance of the premises, but to an assignment of the security.”
Appended to Dickinson v. Duckworth, 4 Ann. Cas. 848, is an instructive note,-citing numerous cases, amongst them Citizens’ National Bank v. Strauss, 29 Tex. Civ. App. 407, 69 S. W. 86, as sustaining the rule here contended for. Numerous cases are also cited holding that the transferee of the mortgagor, who is not made a party to the suit to foreclose the mortgage, may exercise his right to redeem the land, and showing that that right remains with him alone, and to those who have acquired it from him by voluntary or judicial sale, and that it is a personal right which passes to his assignee in bankruptcy, and, upon his death, to his heirs and legal representatives. Many cases cited in that note are cited by Jones, in support of the section above quoted, from his work on Mortgages.
After a careful review of all the cases we can find bearing upon the question, we conclude that the weight of authority is with the rule above quoted from 2 Jones, § 1075. However, aside from this, we think the facts in the record require the application of the Jones rule. The uncontradicted evidence shows that the mineral rights, aside from the value of the surface estate of the east half of the land, are worth more than enough to pay both Perkins and Shelton. The witness Barnum, who, it seems, was an oil investor, testified that the entire mineral right in the east half was worth from $30 to $35 per acre, which would make the mineral estate worth from $150,000 to $175,000, exclusive of the value of the fee. There is no testimony as to the value of the subsurface estate of the west half. Perkins’ debt, as shown in the judgment, is a little less than $70,000, and Shelton’s debt is $16,000, in round numbers. So the mineral estate of the east half is worth nearly twice the aggregate sum of the Perkins and Shelton debts. If Perkins and Shelton can both satisfy their claims by a sale of the east half, there is absolutely no reason why a court of equity should unsettle the established legal title of O’Brien in the west half. So far as this court knows, the value of the surface and subsurface estates may be sufficient to pay off every claim mentioned in the Curtis deed. It is not necessary, however, to decide that question, since only two of the other creditors have appealed and assigned error. Now, if O’Brien cannot compel Perkins and Shelton to marshal, he is deprived, of his west half absolutely under the judgment rendered decreeing both his land and the judgment to Shelton, and his debt and his superior lien are worthless, because he has no recourse and no lien upon the east half, and no judgment against Ozier upon which to base an execution, because his original judgment has passed to Shelton by the decree. Even if he had a judgment or should fix an attachment lien now upon the east half, it would be subject to the prior liens in favor of Perkins and Shelton. We insist that this is not equity; if so, what becomes of the equitable maxims: “He who seeks equity must do equity”; “equity aids the vigilant, not those who slumber on their rights”; “equity follows the law”; “equity delights to do justice, and not by halves”; “equity imputes an intention to fulfill an obligation” ?
What has been said as to the rights of Shelton against O’Brien also applies to the contentions urged in favor of Guaranty State Bank and Interstate Cattle Doan Company, because their -rights, under the Curtis mortgage, are on a .par with those of Shelton. None of the other defendants or interveners have appealed or assigned error, and the judgment as to them is affirmed.
We will now consider the question-of subrogation. It is contended that Shelton, having tendered the amount of O’Brien’s debt, is entitled, -under the principle of equitable subrogation, to have the west half of the land decreed to him in fee. As stated above, we think his right is to have O’Brien’s lien revived in his favor, and the west half again sold under it. Shelton does not attempt by his pleadings to be subrogated to O’Brien’s securities, but insists upon having the land itself. When the instant case was tried, O’Brien had no debt against Ozier,
except such as is evidenced by the unpaid balance of his judgment, and, until his lien is revived for Shelton’s benefit, he has no securities of Ozier in his hands. Long before Shelton’s tender was made, O’Brien had matured his lien into a title by process of law, and his securities have ripened into a fee. "Subrogation is a pure equity, and will be enforced, with due regard to the legal, as well as the equitable, rights of others. It will never be used as an instrument of injustice to defeat a superior equity or overthrow a legal title. Schmitt v. Henneberry, 48 Ill. App. 322; State Bank v. Potius, 10 Watts (Pa.) 148; Fink v. Mahaffy, 8 Watts (Pa.) 384; Albright v. Albright, 228 Pa. 552, 77 A. 896; Rambo v. Argentine State Bank, 88 Kan. 257, 128 P. 182.
O’Brien’s lien was executed and recorded, as required by our registration statutes, and thereby became constructive notice to Shelton and his assignor, the bank. His judgment was .entered and enforced according to specific provisions of our statutes governing the enforcement of liens. The maxim that equity follows the law protects his rights. 21 C. J. 196, 197. O’Brien, having the supe• rior equity and the legal title, must be accorded the prior right to pay off any balance due upon Shelton’s debt after the proceeds of the sale of the east half have been applied to it. The uncontradicted evidence is that Shelton bought the bank’s notes and lien, knowing that O’Brien had already purchased the west half under his foreclosure. In the event he should fail to pay off Shelton’s debt, and Shelton desired to be sub-rogated to his rights, the remedy would not be enforced to the extent that he could acquire the land itself. Equity will only revive and keep O’Brien’s mortgage alive for his benefit, and he would be subrogated to the lien, with only the right to again sell *the west half of the land, if the sale of the east half did not satisfy his debt, and apply the proceeds, first, to the payment of O’Brien’s judgment; second, to the payment of whatever balance may be due him after applying the proceeds realized from the sale of the east half. Any surplus remaining from the sale of the west half must then be paid to O’Brien, who has acquired Ozier’s equity of redemption and the legal title. This general principle in the application of the right' of subrogation was recognized and applied in Fears v. Albea, 69 Tex. 437, 6 S. W. 286, 5 Am. St. Rep. 78; Sanger Bros. v. Ely-Walker D. G. Co. (Tex. Civ. App.) 207 S. W. 348; Evans v. Borehard, 8 Tex. Civ. App. 276, 28 S. W. 258; Bente v. Lange, 9 Tex. Civ. App. 328, 29 S. W. 813. So whether the relative rights of O’Brien and Shelton be adjusted according to the remedy of equitable redemption or subrogation, Shelton could not, in either event, get the land itself, but only O’Brien’s revived lien with the consequent right to again sell the west half, applying the proceeds as above indicated. In this connection we will state that Bivins, Guaranty State Bank, and Interstate Cattle Loan Company were parties defendant in cause No. 3652 in which the O’Brien mortgage was foreclosed in favor of the National Bank of Commerce. The judgment in that case expressly adjudges the rights of said defendants to be inferior and subordinate to the lien of the National Bank of Commerce under which O’Brien claims. So, in addition to the principles of equity declaring O’Brien’s rights to be superior, their priority is fixed by that judgment as to said defendant, and the question is now res judicata.
The rule of lis pendens has no application to this case. As the rule is recognized at common law, Shelton’s assignor, the bank, would not be affected by it, because the Curtí5 deed of trust was executed on September 8, 1922, and, while suit No. 3652 was filed August 29, 1922, citation was not served upon Ozier until six days before the September term of the district court convened, which, according to the apportionment statute, was the 25th day of September, 1922. The common-law rule of lis pendens, as modified by V. "S. C. S. arts. 6837-6840, has no application to the case, for the reason that the record does not show that any notice of lis pendens was ever filed at any time.
O’Brien insists that the land shall be sold in the inverse order of alienation for the payment of Perkins’ purchase-money lien, and that Perkins be required to marshal his securities, selling the east half first. We sustain this contention. 3 Jones on Mortgages (7th Ed.) § 1622, 18 R. C. L. 468, § 17; Miller v. Rogers, 49 Tex. 398; Rippetoe v. Dwyer, 49 Tex. 498; Vansickle v. Watson, 103 Tex. 37, 123 S. W. 112; Hawkins v. Potter, 62 Tex. Civ. App. 126, 130 S. W. 643. This -contention is opposed by Guaranty State Bank and' Interstate Cattle Loan Company, who insist that, as between them and O’Brien, the property should all be sold and á pro rata disposition of the proceeds made between the several lienors. They base their contention mainly upon two cases, viz.: Green v. Ramage, 18 Ohio, 428, 51 Am. Dec. 458, and Gilliam v. McCormack, 85 Tenn. 597, 4 S. W. 521. The Ramage Case seems to support their contention, but the same court, in the later case of Stewart v. Johnson, 30 Ohio St. 24, 31, adjusted the rights of junior and senior mortgagees exactly in the manner laid down by Mr. Jones and quoted above, limiting the junior incumbrancers’ rights to redeem the' first incumbrance and not the land. We therefore do not consider the Ramage Case as authority. It appears that in the Gilliam Case the Tennessee Supreme Court considered only the equity of marshaling, which junior incumbrancers sought to enforce against first mortgagors. As in the Green Case, all of the lienholders wete before the court. Neither of them had
foreclosed and bought the mortgagor’s equity of redemption. Neither the right to redeem, the right of subrogation, nor the question of selling the property in the inverse order of alienation were considered in that case. There were numerous creditors; none of them having a particular lien upon any special fund. Only the inchoate equity of mar-' shaling was involved, and. that was enforced with reference to the rights of the mortgagor, as well as the subsequent mortgagees. In the later Tennessee case of Meek v. Thompson, 99 Tenn. 732, 42 S. W. 685, the same court refused to apply .the rule in the Gilliam Case, and ordered the land sold in the inverse order of alienation, saying that the Gilliam Case clearly recognized that doctrine.
Again, the Tennessee court, in Mowry v. Davenport, 6 Lea, 80, 99, said that the equity of marshaling “is, indeed, not against the creditor, but the common debtor, to prevent him from obtaining the one fund by reason of the recourse of the creditor on the other. It is a creature' of the court of equity for the attainment of justice, not to do injustice.” While that case does not overrule the Ramage Case, it limits it to the particular conditions before the court when the decision was rendered.
Again, in King v. Patterson, 129 Tenn. 1, 164 S. W. 1191, the Tennessee court said that the equity of marshaling as between prior and subsequent attaching creditors must yield to previously acquired legal rights, and the court enforced the liens of the attaching creditors in the order of their'Priority, and not according to the pro rata rule adopted in the Gilliam Case. . So we may safely assume that the Green Case is no longer authority in Ohio, and that the Gilliam Oase is limited to the exact state of facts there shown. Marshaling, being an inchoate equity, does not fasten itself upon the situation at the time the successive securities are taken, but is one
to
be determined at the time the remedy is invoked, 18 R. C. L. 456. On the other hand, the equity of redemption is considered in itself “tantamount to the fee in law.” St. L., A. & T. R. Co. v. Whitaker, 68 Tex. 630, 5 S. W. 448.
This record is barren of any facts which would justify a chancellor in denying O’Brien the right to have both Perkins and Shelton marshal as to the east and west half, or that would warrant the court in permitting Shelton to redeem as to O’Brien.
The former opinions aré withdrawn.
For the reasons stated, the judgment is reversed, and the cause is remanded.
JACKSON, J., not sitting.
GULEKE, Special Judge, concurs.