Gould, Associate Justice.
This is an action of trespass to try title, in which Dwyer recovered of Bippetoe part of lot 43 in the town of Brenham, claimed by the latter as a purchaser at a sheriff’s sale under two judgments rendered in October, 1870, foreclosing a vendor’s lien on lots 43 and 90, as against W. B. Pressley, the original purchaser and maker of the notes sued on; and Perryman joined as claiming an interest in the lots, and claimed by Dwyer under a conveyance made by Pressley to Jennings on February 19,1861, after suit brought on one of these purchase-money notes. The validity of the foreclosure sale under which Bippetoe claims was the question at issue, the. only pleadings on the part of plaintiff' being an ordinary petition in trespass to try title, claiming rent; and on the part.of defendant, the plea of not guilty. Pressley purchased the two lots of Browning in 1859, his deed reciting the unpaid purchase-money notes, and on the same day that he made the deed to Jennings he executed another deed, conveying to Erwin a different part of the same lot, number 43. This latter deed was filed for record at 3 o’clock p. M. of the day of its date, whilst that to Jennings was filed at 5 o’clock p. M. of the same day; and it is claimed that this priority of record is sufficient to show that the deed to Erwin was first made. Bippetoe purchased from Erwin; and in May, 1861, sold, by deed with warranty, to Prindle; who sold to Wilkens; who, in May, 1866, sold, also with warranty, to Perryman and Pflughardt. One of the suits on the purchase-money notes (they were both in favor of assignees) was taken by appeal to this court, and the judgment reversed in 1867; and at a time when both suits were pending “ Perryman and [504]*504Pflnghardt, and their attorney, purchased from G-iddings & G-iddings, attorneys of plaintiffs in those suits, the two notes in suit,- with the understanding that the suits were to be continued to judgment for their benefit, and to be subject to the control of Perryman and Pflnghardt.” Rippetoe afterwards, in connection with the attorney, became the owner of the notes, and was so at the time that the foreclosure sale was had, at which sale he bought in the lots for the sum of $100. Rippetoe claimed that the object of Perryman and Pflnghardt in purchasing the notes was to protect that part of lot 43 which they owned; and that his object was the same, he being responsible by reason of his warranty to Prindle, under whom Perryman and Pflnghardt claimed. At the time of the foreclosure sale the lots were worth three or four thousand dollarg, and Rippetoe subsequently—mainly by sales with warranty, and partly by compromises with parties claiming portions of these lots under Pressley—realized from his purchase over $2,400 and another lot.
Upon this state of facts, (there is other evidence which it is not deemed material to state,) the court instructed the jury, in substance, that Rippetoe acquired no title to the lot in controversy by his purchase at sheriff’s sale, and that at the most he was only entitled to a ratable contribution for the amount paid by him in discharge of the vendor’s lien.
The court also instructed the jury, that if the sheriff’s sale was fraudulently- made, by the connivance or with the knowl.edge of the defendant Rippetoe, it was absolutely void.
In support of the charge of the court, it is claimed that the various purchasers from Pressley (all of whom took their respective purchases subject to the lien for the unpaid purchase-money) held subject only ratably with the others, “ according to the relative values of the estates," and without regard to priority of time in their purchases. In the recent case of Miller et al. v. Rogers et al., (present term,) this subject was considered, and it was said to have “ often been held, with some conflict of authority, that as between different parties [505]*505who purchased land from the mortgagor before such [foreclosure] suit, the land of the last purchasers shall be successively and inversely resorted to before the lands of the preceding purchasers.” Such we are disposed to believe, both on principle and authority, to be the better doctrine. But it is claimed, and it is so held in the case just cited, that at all events the rule of equity is, “ that when a part of the lands are still in the hands of the mortgagor they should be sold first, before those sold by him are resorted to in a suit to foreclose the mortgage.” But, certainly, in the ordinary case of a foreclosure of the lien on all of the property subject thereto, such equities must be set up in the pleading of the defendants, either in the foreclosure suit, or in some subsequent equitable procedure.
In this case, not only is there no pleading setting up such equities, but there is no evidence showing affirmatively that unsold parts of lots 48 and 90 remained in Pressley’s hands. We may dismiss, then, without further consideration, the question of the order of liability, or the rights of contribution between the different purchasers under Pressley. The charge of the court assumes that Bippetoe occupied such a fiduciary relation to Dwyer and the others holding under Pressley, that any title acquired by his purchase would be in trust for them. If he and Dwyer had been joint tenants, or co-partners, or tenants in common holding under the same instrument, his purchase of an incumbrance on the estate would be held, “ at the election of his co-tenants, within a reasonable time, to inure to the equal benefit of all the tenants,'upon condition that they will contribute their respective ratios of the consideration actually given.” See Roberts v. Thorn, 25 Tex., 785, where this subject is considered, and the conclusion reached that tenants in common, acquiring their interests under different instruments at different times, and there being no agreement between them respecting the title, arc under no such relation to each other as to prevent one of them from purchasing an outstanding title or incumbrance. Here, Bip[506]*506petoe at no time was ever a tenant in common with Dwyer. At one time he held under Pressley a different part of lot 43 from that claimed by Dwyer, and, by reason of his warranty, he was' interested in the removal of the common incumbrance. We are unable to see how that fact disqualified him from purchasing otherwise than in trust for Dwyer and others; and in the absence of authority supporting the doctrine laid down in the charge, we hold it to be erroneous. If the judgments under which the foreclosure sale was had were subsisting and unsatisfied, Rippetoe’s purchase thereunder, at a regular sale, gave him a title superior to that of Dwyer, notwithstanding there may perhaps have been equities which Dwyer and others could, at least, perhaps, at one time have asserted.
The sheriff’s deed purports only to convey the interest possessed by Pressley and Perryman on the day the judgments were rendered, and, it is claimed in appellee’s brief, does not affect those parts of the lots which were conveyed by Pressley before that time, not held by Perryman. The record contains no evidence that any such point was made. in the court below; and as no authority has been adduced for limiting the effect of the judgment of foreclosure and the order of sale by the deed of the sheriff", we will only say that we do not regard it as a good ground for refusing to reverse the judgment.
The court submitted to the jury various instructions on the subject of fraud in the foreclosure sale.
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Gould, Associate Justice.
This is an action of trespass to try title, in which Dwyer recovered of Bippetoe part of lot 43 in the town of Brenham, claimed by the latter as a purchaser at a sheriff’s sale under two judgments rendered in October, 1870, foreclosing a vendor’s lien on lots 43 and 90, as against W. B. Pressley, the original purchaser and maker of the notes sued on; and Perryman joined as claiming an interest in the lots, and claimed by Dwyer under a conveyance made by Pressley to Jennings on February 19,1861, after suit brought on one of these purchase-money notes. The validity of the foreclosure sale under which Bippetoe claims was the question at issue, the. only pleadings on the part of plaintiff' being an ordinary petition in trespass to try title, claiming rent; and on the part.of defendant, the plea of not guilty. Pressley purchased the two lots of Browning in 1859, his deed reciting the unpaid purchase-money notes, and on the same day that he made the deed to Jennings he executed another deed, conveying to Erwin a different part of the same lot, number 43. This latter deed was filed for record at 3 o’clock p. M. of the day of its date, whilst that to Jennings was filed at 5 o’clock p. M. of the same day; and it is claimed that this priority of record is sufficient to show that the deed to Erwin was first made. Bippetoe purchased from Erwin; and in May, 1861, sold, by deed with warranty, to Prindle; who sold to Wilkens; who, in May, 1866, sold, also with warranty, to Perryman and Pflughardt. One of the suits on the purchase-money notes (they were both in favor of assignees) was taken by appeal to this court, and the judgment reversed in 1867; and at a time when both suits were pending “ Perryman and [504]*504Pflnghardt, and their attorney, purchased from G-iddings & G-iddings, attorneys of plaintiffs in those suits, the two notes in suit,- with the understanding that the suits were to be continued to judgment for their benefit, and to be subject to the control of Perryman and Pflnghardt.” Rippetoe afterwards, in connection with the attorney, became the owner of the notes, and was so at the time that the foreclosure sale was had, at which sale he bought in the lots for the sum of $100. Rippetoe claimed that the object of Perryman and Pflnghardt in purchasing the notes was to protect that part of lot 43 which they owned; and that his object was the same, he being responsible by reason of his warranty to Prindle, under whom Perryman and Pflnghardt claimed. At the time of the foreclosure sale the lots were worth three or four thousand dollarg, and Rippetoe subsequently—mainly by sales with warranty, and partly by compromises with parties claiming portions of these lots under Pressley—realized from his purchase over $2,400 and another lot.
Upon this state of facts, (there is other evidence which it is not deemed material to state,) the court instructed the jury, in substance, that Rippetoe acquired no title to the lot in controversy by his purchase at sheriff’s sale, and that at the most he was only entitled to a ratable contribution for the amount paid by him in discharge of the vendor’s lien.
The court also instructed the jury, that if the sheriff’s sale was fraudulently- made, by the connivance or with the knowl.edge of the defendant Rippetoe, it was absolutely void.
In support of the charge of the court, it is claimed that the various purchasers from Pressley (all of whom took their respective purchases subject to the lien for the unpaid purchase-money) held subject only ratably with the others, “ according to the relative values of the estates," and without regard to priority of time in their purchases. In the recent case of Miller et al. v. Rogers et al., (present term,) this subject was considered, and it was said to have “ often been held, with some conflict of authority, that as between different parties [505]*505who purchased land from the mortgagor before such [foreclosure] suit, the land of the last purchasers shall be successively and inversely resorted to before the lands of the preceding purchasers.” Such we are disposed to believe, both on principle and authority, to be the better doctrine. But it is claimed, and it is so held in the case just cited, that at all events the rule of equity is, “ that when a part of the lands are still in the hands of the mortgagor they should be sold first, before those sold by him are resorted to in a suit to foreclose the mortgage.” But, certainly, in the ordinary case of a foreclosure of the lien on all of the property subject thereto, such equities must be set up in the pleading of the defendants, either in the foreclosure suit, or in some subsequent equitable procedure.
In this case, not only is there no pleading setting up such equities, but there is no evidence showing affirmatively that unsold parts of lots 48 and 90 remained in Pressley’s hands. We may dismiss, then, without further consideration, the question of the order of liability, or the rights of contribution between the different purchasers under Pressley. The charge of the court assumes that Bippetoe occupied such a fiduciary relation to Dwyer and the others holding under Pressley, that any title acquired by his purchase would be in trust for them. If he and Dwyer had been joint tenants, or co-partners, or tenants in common holding under the same instrument, his purchase of an incumbrance on the estate would be held, “ at the election of his co-tenants, within a reasonable time, to inure to the equal benefit of all the tenants,'upon condition that they will contribute their respective ratios of the consideration actually given.” See Roberts v. Thorn, 25 Tex., 785, where this subject is considered, and the conclusion reached that tenants in common, acquiring their interests under different instruments at different times, and there being no agreement between them respecting the title, arc under no such relation to each other as to prevent one of them from purchasing an outstanding title or incumbrance. Here, Bip[506]*506petoe at no time was ever a tenant in common with Dwyer. At one time he held under Pressley a different part of lot 43 from that claimed by Dwyer, and, by reason of his warranty, he was' interested in the removal of the common incumbrance. We are unable to see how that fact disqualified him from purchasing otherwise than in trust for Dwyer and others; and in the absence of authority supporting the doctrine laid down in the charge, we hold it to be erroneous. If the judgments under which the foreclosure sale was had were subsisting and unsatisfied, Rippetoe’s purchase thereunder, at a regular sale, gave him a title superior to that of Dwyer, notwithstanding there may perhaps have been equities which Dwyer and others could, at least, perhaps, at one time have asserted.
The sheriff’s deed purports only to convey the interest possessed by Pressley and Perryman on the day the judgments were rendered, and, it is claimed in appellee’s brief, does not affect those parts of the lots which were conveyed by Pressley before that time, not held by Perryman. The record contains no evidence that any such point was made. in the court below; and as no authority has been adduced for limiting the effect of the judgment of foreclosure and the order of sale by the deed of the sheriff", we will only say that we do not regard it as a good ground for refusing to reverse the judgment.
The court submitted to the jury various instructions on the subject of fraud in the foreclosure sale. Our opinion is, that in case of a judicial sale made by virtue of a valid subsisting judgment or decree authorizing the execution or order of sale under which the officer proceeds, where the proceedings are regular, resulting in a deed to the purchaser, he takes a title which is valid until the sale is set aside. (Owen v. City of Navasota, 44 Tex., 522,-and authorities cited.) However liberal our laws in admitting evidence under the plea of not guilty in cases of trespass to try title, there is no authority for granting such affirmative equitable relief as avoiding a sheriff’s deed for irregularities in the sale, when it is not prayed [507]*507for. (Ayres v. Duprey, 27 Tex., 594.) If there are any equitable grounds for setting aside the sale at which Rippetoe purchased, they should be set up in accordance with equitable. principles,—proffering to do equity, and praying for the relief needed.
Under the view which we take of the ease, the court erred in its charge, and in the admission of evidence on the issue of fraud in the sale at which Rippetoe bought.
Eor these errors, without discussing other questions, the judgment is reversed and the cause remanded.
Reversed and remanded.