¶1 (dissenting). I do not com cur in the view expressed in the majority opinion herein that appellants’ plea of privilege to be sued in the county of their residence should be sustained. I think that the justice court in Coleman county had jurisdiction as to them by virtue of subdivision 5 of article 1830, R. S. 1911, which reads:
“Where a person has contracted in writing to perform an obligation in any particular county, in which case suit may be brought either in such county, or where the defendant has his domicile.”
¶2 The obligation sued on was to be performed in Coleman county, and it is conceded that as to Hager the suit was properly brought in that county. The only judgment asked was the enforcement of that contract; that is to say, judgment against Hager on the note and foreclosure of the mortgage on the property described in that contract. Appellants, being subsequent mortgagees, were proper parties to the suit. They took their mortgage with constructive knowledge of appellee’s prior mortgage, and were charged with notice, as a matter of law, that they could properly be made parties to a suit to enforce the prior mortgage. No personal judgment is sought against them. The only thing that appellee asks is that they shall do what the law says they agreed to do when they took their mortgage, and that is recognize the superiority of appellee’s prior mortgage. The judgment in favor of appellee does nothing more than enforce his written contract to which the appellants, for the purpose of the proper enforcement of the same, have voluntarily, to that extent, made themselves parties. Under such circumstances, I do not think that they should be permitted to oust the justice court in Coleman county of its jurisdiction conferred by the contract sued on by claiming that suit must be brought to enforce said contract in the county of their residence. If the contract is not enforced against a subsequent mortgagee, in effect, it is not enforced at all. I do not think that a subsequent mortgagee should be permitted to nullify the statute which gives jurisdiction in the county where the contract is to be performed.
¶3 The point in issue in this ease was not involved in either of the cases cited in the majority opinion, except the case of Sublett v. Hurst, 164 S. W. 448. I think that the honorable Court of Civil Appeals for the Sixth District fell into error in that case by reason of its failure to consider the facts in the ease of Behrens Drug Co. v. Hamilton et al., 92 Tex. 284, 48 S. W. 5, upon which it based its opinion. The Behrens Case was not a suit to foreclose a mortgage, but was a suit against Hamilton & McCarty on a note payable in McLennan county, and for a personal judgment against the First National .Bank of Comanche, by reason of its alleged conversion of the mortgaged property. The bank was not liable on the contract sued on for the reason that it was not a party to such contract. It was not suable in McLen-nan county as a proper party to the enforcement of the mortgage, for the reason that no foreclosure of the mortgage was sought. The only alleged liability of the bank was by reason of its conversion of the mortgaged property, alleged to have been committed in Comanche county, and, under mo exception to the statute, could the bank be sued, without its consent, in McLennan county for a tort committed in Comanche county. This is the extent of the holding in the Behrens Case. In Sapp v. Davidson et al., 21 Tex. Civ. App. 566, 54 S. W. 366, Freeman, who lived in Ellis county, was sued in Fayette county for converting cotton in Ellis county. In Behrens v. Brice et al., 52 Tex. Civ. App. 221, 113 S. W. 782, the Haywood Oil Company, whose place of residence was Jefférson county, was sued in Harris county for a tort committed by it, if at all, in Hardin county. In Johnson v. Langford, 52 Tex. Civ. App. 397, 114 S. W. 693, the suit was against Johnson and Earnest Langford in precinct No. 1, in Comanche county. The contract was not to be performed, nor did either of the defendants live, in said precinct. In Breed v. Higginbotham, 141 S. W. 164, the suit was instituted against *4 Hill upon a contract to be performed by Mm in Comancbe county, and Mrs. Breed, wbo lived in Brown county, was made a party for tbe purpose of enforcing a mortgage executed by Hill. Hill was not cited, and for that reason it was held that no judgment could be rendered against Mrs. Breed. The court said:
“The asserted lien against the property … was ancillary only — an incident merely of the suit upon the note which constituted the basis of the proceedings — and the dependent issue necessarily failed when the only obligor therein was in effect dismissed by appellee’s declared election to proceed with the trial without any character of citation or notice to the maker of the note.”
¶4 In Railway Co. v. McKnight, 99 Tex. 289, 89 S. W. 755, the St. Louis & Southwestern Railroad was sued in Potter county, upon a contract to which it was not a party, for a tort alleged to have been committed by it in Bowie county. In Lindheim v. Muschamp, 72 Tex. 33, 12 S. W. 125, defendants were sued in a county other than that of their residence on a contract not to be performed in any particular' place. This was also the fact in Cohen v. Munson, 59 Tex. 236. In Fermier v. Brannan, 21 Tex. Civ. App. 543, 53 S. W. 702, one of the defendants lived in the county where the suit was brought, and it was held that the other defendant could properly be sued in that county, though they were husband and wife living in different counties. These are all of the eases cited in the majority opinion. ’
¶5 The correct judgment was rendered in Sublett v. Hurst, supra, for the reason that the mortgage was void as to Sublett. Burlington Bank v. Marlin Bank, 166 S. W. 499, decided at the present term of this court.