W. J. Morphy et al. v. D. L. and J. Garrett, 48 Tex. 247

Gould, Associate Justice. The appellees enjoined the enforcement of a deed of trust, claiming that the note secured by the trust deed had been fully paid. In specifying the payments, it was alleged that it had been agreed by defendants that the amount of a note on one Heath, which note had been by one of the plaintiffs indorsed to Wallace & Co., should be entered as a credit on the note secured by the deed of trust.

On the trial, however, it was found, and indeed such was the purport of Garrett’s own testimony, that the Heath note was held merely as a collateral, to secure the same note secured by the deed of trust.

The judgment of the court, to whom the cause was submitted without a jury, states this fact, and further, that Wallace & Co. had reduced the Heath note to judgment, which they retained control of and had not accounted for; states further, that the balance due on the note secured by the deed of trust, and not secured by the judgment on the Heath note, was $240.46;- and thereupon proceeds to perpetuate the injunction, except as to said balance, until said Wallace & Co. have finally accounted to plaintiffs for the proceeds of the Heath note and judgment.

This was to grant plaintiffs relief on grounds not set out in their petition. They had not, in their petition, claimed relief, because of defendants’ neglect to collect or account for the Heath note, but on the very different ground, that it had been agreed to take that note as a payment, and to enter its amount as a credit. The plaintiffs failed to make out this part of their case; and it was error in the court to give plaintiffs relief on other grounds than those stated in their pleadings.

In reversing the cause for this error, we certainly do not intend to intimate that a creditor, whose debt is made safe by collaterals as well as by deed of trust, may not enforce all of his securities until his debt is paid; nor that the debtor is without remedy if injured by the failure of the creditor to use proper diligence in the management of Ms securities, or to give proper account and credit for amounts realized therefrom. (Edwards on Bailments, 234, 261; Lewis v. Taylor, 17 Tex., 57.) The judgment is reversed and the cause remanded. Reversed and remanded.