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.
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 first sale to Clearman is not shown to have ever been consummated, but even if it had been, as between him and Graham, equity will treat the legal and equitable titles as held separately in Clearman in order to prevent injustice and to protect the rights of the creditor, if his interest require such a severance. Silliman v. Gammage, 55 Tex. 365; Pugh v. Sample, 123 La. 791, 49 So. 526, 39 L.R.A. (N. S.) 834, and extensive note; Elliot v. Slaughter (Tex.Civ.App.) 236 S.W. 1114. After the purchase by Graham, under the first lien, what had theretofore been a second lien upon the 80 acres then became a first lien on same.