H. A. Delespine and Wife v. George B. Campbell et al., 45 Tex. 628

Moore, Associate Justice. This litigation would have been avoided, the rights of the parties more speedily and satisfactorily ascertained and adjusted, if .either appellants or appellee, Campbell, had, as evidently they should have done, asked the court to pass upon and determine their respective rights under the mortgage in their suits against Wren on the notes for the security of which the mortgage was given. There can be no doubt that both Delespine and Campbell were fully cognizant of the rights claimed by the other under the mortgage which they were mutually seeking to foreclose.

All persons interested in the mortgage should have been parties to a suit for its foreclosure; that even subsequent purchasers and incumbrancers, of whose claims the plaintiff is informed when he brings his suit, should be joined in the action, seems universally admitted. It was so held in at least two or three cases not yet reported, decided by this court during its last term. (Preston v. Breedlove; Byles v. Johnson; Cooper v. Martin, 1 Dana, 23; Haines v. Burch, 3 Johns. Ch., 459; Vanderkemp v.

Shelton, 11 Paige, 28.) Hnless appellants are estopped in some way from invoking the equitable interposition of the court, it follows, even if they were junior incumbrancers, that, under their prayer for equitable relief, they would have been entitled to redeem, unless appellees, as the purchasers under Wren, chose to pay their debt. It may be said that appellants, having failed to ask the proper relief when they sued upon their note, it is now too late for them to do so.

But, in view of the fact that both parties seemed to have supposed that it was unnecessary to bring all the parties interested in the mortgage before the court; and although appellants made Campbell a party to then- suit, he did not set up his rights under the mortgage, but instituted his separate action against the mortgagor; and in farther view of the grossly inadequate price at which the land is alleged to have been sold under the decree; that Campbell was the purchaser at this sale, and that its conveyance by him to Mrs.

Pinson is alleged to be collusive and fraudulent, — we think the application of the rule that equity will not interpose for the relief of a party who has neglected to ask it, when he might have done so, inapplicable to this case. At most, the parties are equally in fault, and equity is with appellant. If the court had been called upon in either of the original suits to determine the respective equities of the parties under the mortgage, appellants could not have been held to be junior incumbrancers. The mortgage was given to secure a debt, payable in two installments.

Appellants were the holders of the note first due. By its transfer they were entitled to all the securities for its payment to which the payee was entitled. Some courts hold, when a mortgage is given for the security of a debt payable by installments, and the property is insufficient to pay all the notes, they are entitled to preference in the order in which they fall due. (The State Bank v. Tweedy, 8 Blackf., 447; M’Vay v. Bloodgood, 9 Port, 547; Berger v.

Hiester, 6 Wharf, 210.) There seems, however, to be equal weight of authority, where there are no special facts to warrant a different construction, for saying, if all the notes are due, that the proceeds of the mortgage should be applied to the payment of the notes pro rata. (Cage v. Iler, 5 S. & M., 410; Henderson v. Herrod, 10 Id., 631; Parker v. Mercer, 6 How., (Miss.,) 320; Pease v. Bancroft, 5 Met., 90.) By which of these classes of decisions the court should be guided in adjusting the rights of the parties in this case, it would be premature for us to determine in its present attitude.

The judgment is reversed and the cause remanded. Reversed and remanded.