Duke v. Reed, 64 Tex. 705, 715; Browne v. King, 111 Tex. 330, 336, 235 S.W. 522; Hannay, Admr., v. Thompson, 14 Tex. 142; French v. Grenet, 57 Tex. 273; Calhoun v. Lumpkin, 60 Tex. 185; Rodriguez v. Haynes, 76 Tex. 225, 13 S.W. 296; Mozoch v. Sugg, (Com. App.) 254 S.W. 770; Baker v. Collins, 4 Texas Civ. App. 520[ 4 Tex. Civ. App. 520], 23 S.W. 493; Hays v. Tilson, 18 Texas Civ. App. 610[ 18 Tex. Civ. App. 610], 45 S.W. 479 (application for writ of error refused); Vanderwolk v. Matthaei, 167 S.W. 304 (application for writ of error refused); Elliott v. C. C. Slaughter Co., 236 S.W. 1114; Majors v. Strickland, 6 S.W.2d 133; Bryan v. Kales, 162 U.S. 411, 16 Sup.Ct. 802, 40 L.Ed. 1020; Stouffer v. Harlan, 68 Kan. 135, 74 P. 610, 64 L. R. A. 320, 104 Am. St. Rep. 396; Jaggar v. Plunkett, 81 Kan. 565, 106 P. 280, 25 L. R. A. (N. S.) 935; Kaylor v. Kelsey, 91 Neb. 404, 136 N.W. 54, 40 L. R. A. (N. S.) 839; Jones on Mortgages, (8th ed.) Vol. 2, Secs. 886, 887, pp. 219-221. It is settled also that the mortgagee has the right to retain possession until the debt is paid, even though the debt is barred by limitation.
But, as the matter stood in the trial court, without Stratton having pleaded his affirmative equitable rights and remedies, the trial court would have been obliged to render judgment in favor of Balcom, who had the record title. The rights and remedies of these parties are illustrated in Elliott v. C. C. Slaughter Co. (Tex. Civ. App.) 236 S.W. 1114, a parallel case. Elliott and others sued C. C. Slaughter Company in trespass to try title.
There being no proof that defendants, as mortgagees, entered upon said land unlawfully, and there being evidence to show that they were in possession at the time of the suit and the debt being a valid debt, they should have been permitted, even if the trustee's deed was invalid, to pursue the alternative remedy of foreclosure on the failure of the mortgagors to pay the debt. Elliott v. Slaughter Co., 236 S.W. 1114; Duke v. Reed, 64 Tex. 715, 1 Jones on Mortgages (6th ed.) 726. J. A. Ward, of Mount Pleasant, for defendant in error.
Hill v. Preston, 119 Tex. 522, 34 S.W.2d 780, 782, Id., Tex.Civ.App. 296 S.W. 925. If the insurance company was a mortgagee lawfully in possession of the premises, as found by the trial court, we are of the opinion that the plea of limitation was not available to appellants as junior lienholders for the purpose of ousting the insurance company without first tendering to it the amount of its unpaid prior lien. Elliott v. C. C. Slaughter Co., Tex.Civ.App. 236 S.W. 1114; Caffarelli Bros. v. Pearce, Tex.Civ.App. 10 S.W.2d 594; Church v. Cocke, 120 Tex. 262, 37 S.W.2d 723: Connor Bros. v. Williams, 130 Tex. 572, 112 S.W.2d 709; City National Bank v. Moody, Tex.Civ.App. 115 S.W.2d 745. It is well settled that a mortgagee lawfully in possession has the right to retain such possession until his debt is paid. See Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R. 329, and numerous cases there cited.
But in answer to the argument stressed by appellant that the evidence showed a merger of the debts and liens for which plaintiff seeks a recovery in this suit, with the claim presented by the Columns in their intervention in the receivership of the Centennial Oil Gas Company, we will add that there could be no such merger in the absence of an intention to accomplish that result, and the evidence noted above conclusively refutes such an intention. Tankersley v. Jackson, Tex. Civ. App. 187 S.W. 985; Elliott v. C. C. Slaughter Co., Tex.Civ.App. 236 S.W. 1114; 41 C.J., § 744, page 709. For the reasons noted, all assignments of error are overruled and the judgment of the trial court is affirmed.
In the case cited, it is further held that a petition, in such circumstances, which does not tender such payment is subject to a general demurrer. It is well established that when a mortgagee purchases at a foreclosure sale which is irregular or void as to the mortgagor, or one claiming under the mortgagor, and who has taken possession under and in reliance upon the foreclosure and purchase, may retain possession against the mortgagor or one claiming under him, until the debt is paid. Conner Bros. v. Williams, 130 Tex. 572, 112 S.W.2d 709. See, also, Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R 329; Elliott v. C. C. Slaughter Co., Tex.Civ.App. 236 S.W. 1114; Vanderwolk v. Matthaei, Tex.Civ.App. 167 S.W. 304, writ refused. Many other cases could be cited in support of such holdings.
It is true the appellants will suffer the inconvenience of having to bring an action to foreclose the lien already fixed by the judgment of the trial court, but they will lose no legal rights respecting said lien. Monroe v. Buchanan, 27 Tex. 241; Silliman v. Gammage, 55 Tex. 365; Elliott v. C. C. Slaughter Co., Tex. Civ. App. 236 S.W. 1114; York v. Robbins, Tex.Com.App., 255 S.W. 720."
It is true the appellants will suffer the inconvenience of having to bring an action to foreclose the lien already fixed by the judgment of the trial court, but they will lose no legal rights respecting said lien. Monroe v. Buchanan, 27 Tex. 241; Silliman v. Gammage, 55 Tex. 365; Elliott v. C. C. Slaughter Co., Tex. Civ. App. 236 S.W. 1114; York v. Robbins, Tex.Com.App., 255 S.W. 720. The motion for rehearing is overruled.
That a mortgagee in lawful possession of the mortgaged premises can hold his possession until his debt is paid is the unquestioned law of this state. Browne v. King, 111 Tex. 330, 235 S.W. 522; 7 Tex. Law Review, 170; 41 C.J. p. 613, par. 581; Rodriguez v. Haynes, 76 Tex. 225, 13 S.W. 296; Howard v. North, 5 Tex. 290, 51 Am.Dec. 769; R. B. Hannay, Adm'r v. Louisa L. Thompson, 14 Tex. 142; Morrow v. Morgan, 48 Tex. 304; Burgess v. Samuel H. Millican, 50 Tex. 397; French v. Grenet, 57 Tex. 273; Duke v. Reed, 64 Tex. 705; Northcraft v. Oliver, 74 Tex. 162, 11 S.W. 1121; Baker v. Collins, 4 Tex. Civ. App. 520, 23 S.W. 493; Hays v. Tilson, 18 Tex. Civ. App. 610, 45 S.W. 479; Vanderwolk v. Matthaei (Tex. Civ. App.) 167 S.W. 304; Elliott v. C. C. Slaughter Co. (Tex. Civ. App.) 236 S.W. 1114; Majors v. Strickland (Tex. Civ. App.) 6 S.W.2d 133; Thomason v. Wiebusch (Tex. Civ. App.) 89 S.W.2d 452. Though his debt is barred by limitation, he can hold possession until it is paid. Appellees define "a mortgagee in lawful possession" as "one in possession by consent of the mortgagor, or under circumstances calling to his aid principles of equity to avoid unconscionable wrong," citing principally Galloway v. Kerr (Tex. Civ. App.) 63 S.W. 180, and Williams v. Connor Bros. (Tex. Civ. App.) 83 S.W.2d 692 (writ granted).
The judgment lien of the defendants is subordinate to the title of plaintiff. Silliman v. Gammage, 55 Tex. 365; Tankersley v. Jackson (Tex.Civ.App.) 187 S.W. 985; Elliott v. C. C. Slaughter Co. (Tex.Civ.App.) 236 S.W. 1114. Nor did the common source agreement preclude plaintiff from showing the facts establishing the superiority of its title under the reconveyance from Stuessy over the judgment lien of the defendants.