J. P. Parker & Co. v. Benner, Cornish & Co., 1 White & W. 28

Opinion by White, P. J. § 64. Mortgagee cannot assert Ms claim in trial of right of property. A mortgage is security and will remain with mortgagor, and is subject to execution against mortgagor. A mortgagee has no such interest in mortgaged property as can be asserted by claim under the statute providing for the trial of the right of property. A mortgage is but a security, the. title remaining in the mortgagor until divested by foreclosure.' Mortgaged property is liable to execution against the mortgagor, subject to the lien created by the mortgage. [Wright v. Henderson, 12 Tex. 43; Gillian v. Henderson, 12 Tex. 47.] Reversed and remanded.