Wootton v. Wheeler

22 Tex. 338

Opinion

Wheeler, Ch. J.

The appellee asserted his claim to the property, under the deed of the 18th of October, 1846. That instrument is but a mortgage, with a power to sell added thereto. (4 Kent’s Com. 146 ; 16 Tex. Rep. 474.) And it is the settled 1ÚAV of this state, that mortgaged property is liable to execution against' the mortgagor, subject to the lien created by the mortgage. (Gilliam v. Henderson, 12 Tex. Rep. 47; Bullard v. Anderson, 18 Id. 377.) The mortgagee was not entitled to hold the property, exempt from liability to be taken and sold, subject to his lien, under execution against the mortgagor. The present cannot be distinguished from the case of Wright v. Henderson, 12 Tex. Rep. 43; and Gilliam v. Henderson, Id. 47. Upon the principle of these cases, the claimant manifestly had no canse of action. And as the objection goes to the foundation of the action, the judgment must be reversed and the cause dismissed.

Reversed and dismissed.