¶1 (dissenting). Previous to the rendition of the opinion of the majority and of this dissenting opinion, there hQ.ve been two other opinions written in this cause. The other two opinions were concurred in by the Chief Justice; Associate Justice Jackson not sitting. We granted motions for rehearing on those opinions, because we believed we were in error, and, upon the third opinion being prepared by the writer, the Chief Justice refused to concur. A special associate justice having been appointed in the case, he concurred with and approved the opinion of the Chief Justice herein filed; hence this opinion will be presented as a dissent to the conclusion of the majority thus constituted.
¶2 For the purposes of this opinion, I restate the case that my view of the questions of law may be fully illustrated:
¶3 W. O’Brien and the Interstate Cattle Loan Company, Interstate National Bank and Guaranty State Bank — the first party and the last named three parties — by separate appeals have appealed from a judgment in the district court of Potter, county, Tex., rendered in a suit filed in that court on February 23, 1924, brought by J. J. Perkins, as plaintiff, against W. R. Ozier, Amarillo National Bank, Interstate Cattle Loan 'Company, W. O’Brien, and Interstate National Bank et al. Plaintiff’s suit was based upon certain vendor’s lien notes, in which judgment was prayed for against Ozier as maker, and for the foreclosure of a vendor’s lien securing the payment of the notes against each and all of the defendants named in said petition.
¶4 The notes sued on were executed by the defendant Ozier to R. B. Masterson on April 24, 1917, and were given in part payment for a certain body of land amounting approximately to 10,000 acres, and, in addition to the retention of the vendor’s lien in the deed, a deed of trust was executed by Ozier to C. E. Weymouth, trustee, to secure the payment of sai(d vendor’s lien notes so given to Master-son. After the maturity of the vendor’s lien notes sued on, R. B. Masterson, the then owner, sold and transferred them and all of the liens securing the payment of same to J. J. Perkins, who, as such transferee or owner, filed this suit, as stated. Appellant O’Brien filed an answer on May 30, 1924, by the terms of which he alleged that W. R. Ozier, on August 12, 1921, owned certain land in Moore county, Tex., subject to the vendor’s lien and deed of trust given to secure the Masterson purchase-money debt, and on said date Ozier executed and delivered to one'Embry a deed of trust lien upon about 5,000 acres of said land, hereinafter being known and described as the tvest one-half of the land purchased by Ozier from Masterson, to secure the .payment of certain indebtedness due to the National Bank of Commerce and appellant O’Brien, which deed of trust was filed for record in Moore county on September 14, 1921, and afterward O’Brien sold the notes evidencing the indebtedness to him and described in said last-named deed of trust to *317 the National Bank of Commerce, who thereby became the owner of all the indebtedness secured by the Embrydeed of trust. On August 29, 1922, the National Bank of Commerce filed suit in the district court of Rotter county, Tex., asking judgment, for the debt, principal, interest, and attorney’s fees due upon the last-named notes, and to foreclose the deed of trust lien securing the payment of same on said west one-half of such land. After the filing of the last-named suit, on September 2, 1922, W. R. Ozier executed and delivered a deed of trust to T. A. Curtis, trustee, upon the whole of said 10,000-acre tract for the purpose of securing Lee Bivins, Guaranty State Bank of Amarillo, Interstate Cattle Loan Company, Interstate National Bank, National Bank of Commerce of Amarillo, and the Amarillo National Bank" of Amarillo, Tex., and other creditors, in the payment of various debts recited in said last-named trust deed and owed by Ozier to the beneficiaries therein named.- The National Bank of Commerce on November 7,1922, filed in the suit of National Bank of Commerce v. Ozier its amended petition, and practically the only amendment made by said petition which differentiates it from the original petition is to make T. A. Curtis, trustee, in the deed of trust .dated September 2, 1922, a party defendant in said suit, hut the beneficiaries in said trust deed to Curtis were not made parties to said suit of National Bank of Commerce v. Ozier. However, Lee Bivins, Guaranty State Bank, and the Interstate Cattle Loan Company, who were beneficiaries in the Curtis deed of trust, intervened in said suit and asserted their debts and liens.
¶5 Judgment was rendered in said suit of National Bank of Commerce v. Ozier on April 12, 1923, by the terms of which the National Bank of Commerce recovered judgment for the sum of $35,281.30, with interest thereon at 10 per cent, per annum against W. R. Ozier, and for a foreclosure of its trust deed lien of August 12, 1921, upon the west one-half of the said Ozier land against O’Brien, Interstate Cattle Loan Company, Guaranty State Bank, and T. A. Curtis, trustee, and with other provisions not now necessary to state. An order of sale was issued’ under said last-named judgment, and the west one-half of the said Ozier 10,000-acre tract was sold by the sheriff of Moore county to appellant O’Brien for the sum of $25,500, and O’Brien afterwards became owner by purchase from the National Bank of Commerce of the balance of the judgment in this last-named case, after crediting same with the amount of his bid. In this suit the appellant O’Brien, in addition to asserting title to the west one-half of said land, subject to the suit to foreclose a vendor’s lien by plaintiff Perkins, prayed that the east one-half of said land be sold to satisfy plaintiff Perkins’ vendor’s lien debt before a levy is permitted on and before sale of the west one-half of ' said land so purchased by him as above stated.
¶6 The appellee Amarillo National Bank filed its original answer in this case, setting up the fact that it had sold its debt and notes secured by the Curtis deed of trust to J. M. Shelton, and appellee J. M. Shelton intervened and answered in this cause, and alleged that since the filing of this suit he had purchased from the defendant the Amarillo National Bank the indebtedness owing to said bank by Ozier, as well as all liens, rights, title, equities, and redemptions, whether legal or equitable, in and to the lands in controversy, and declaring on same in this suit.
¶7 Upon the trial of this case the trial court entered a judgment in favor of appellee J. J. Perkins for the amount of his debt, and for foreclosure of his vendor’s lien on the whole 10,000-acre tract, and in the judgment directed that the east one-half of the land be sold first to satisfy Perkins’ judgment, and, in the event the sale of the east one-half did not bring enough to satisfy the judgment, then that the west one-half be sold, and, if the sale of that part did not bring a sufficient amount to satisfy -the judgment in Perkins’ favor, then that the mineral rights under a part of the land in the west one-half be sold, and, in case that the sale of the whole tract and of the mineral rights did not satisfy said judgment in full, that the balance be made out of Ozier under execution. It was further decreed by the trial court that, in the event the east one-half of the land should sell for more than a sufficient amount to pay off ap-pellee Perkins, then that the proceeds in excess of said amount be paid to the Guaranty State Bank, the Interstate National Bank, the Interstate Cattle Loan Company, and in-tervener J. M. Shelton in proportion to the amount due them by Ozier; in the event it was necessary to sell the west one-half of said land, then that the excess,’ after paying the appellee Perkins’ debt, be applied and paid to the intervener J. M. Shelton. It was further decreed by the court that the inter-vener J. M. Shelton, who had tendered into court and paid into the registry thereof the sum of $39,497.25, which was the full amount of the principal, interest, attorney’s fees, and costs of the judgment in the case of National Bank of Commerce v. W. R. Ozier, be granted an equity of redemption as against W. O’Brien, appellant, as to the west one-half of said land, and that the funds so placed in the registry of the court by said intervener be decreed rto be the property of the appellant W. O’Brien, and that the west one-half of said land consisting of about 5,000 acres be decreed to be the property of the inter-vener J. M. Shelton, subject, however, to the terms of said judgment.
¶8 I shall discuss the questions arising in the case without reference to the order of their presentation in the briefs of the appellants, *318 giving my views on each question as I deem the determination thereof important and related to the question following it.
¶9 The lien under which O’Brien holds and claims was a prior lien to that held .by the appellee Shelton, which he had purchased from the Amarillo National Bank, and, of course, Shelton’s rights were subordinate to the enforcement of such prior lien upon the west one-half of the land. The National Bank of Commerce brought its suit to enforce such prior lien by foreclosure on the west one-half of the Ozier land. As stated above, Ozier had executed and delivered to T. A. Curtis, as trustee, an instrument which I will here designate a deed of trust, conveying to Curtis, as trustee, the whole of the Ozier 10,000 acres, and this was done after the filing of the suit by the National Bank of Commerce v. Ozier. The Amarillo National Bank, one of the beneficiaries under such Curtis deed of trust, accepted thereunder without any notice, actual or constructive, of the pendency of the suit of National B'ank of Commerce v. Ozier. A judgment was rendered in the suit of the National Bank of Commerce v. Ozier, foreclosing said prior lien, order of sale was issued, and the land sold, that is, the west one-half, and, in the sale of the west one-half, O’Brien became the purchaser thereof, and also took over the balance of the judgment in said cause, as stated. Curtis, the trustee named in the deed of trust, was made a party to the suit of the National Bank of Commerce v. Ozier, but the Amarillo National Bank was not. The Amarillo National Bank, after the filing of the suit, and without any notice of its pen-dency, sold its debts and liens to appellee Shelton. Under these facts it is insisted that Amarillo National Bank and Shelton are concluded by the judgment in the case of National Bank of Commerce v. Ozier, for the reasons, first, that said bank acquired its lien pendente lite and was not a purchaser for value, and, second, that the so-called deed of trust was a general assignment, and that service on Curtis, the trustee, or assignee, was a service upon the creditors claiming thereunder.
¶10 The doctrine of lis pendens does not apply in this case, and the pendency of the suit of the National Bank of Commerce v. Ozier does not conclude any right of Shelton as purchaser from the Amarillo National Bank, because at the very time Ozier executed and delivered the deed of trust to Curtis, and at the time of the acceptance thereunder by the Amarillo National Bank, citatibn had not been served upon the defendant Ozier. The petition in the case of the National Bank of Commerce v. Ozier was filed in the district court of Potter county, Tex., on August 29, 1922, and citation was immediately issued and delivered to the sheriff of Potter county, but such citation was not served on the defendant Ozier until six days before the next term of the district ’court for Potter county, which was on the 25th day of September, 1922. Therefore such citation was served on Ozier on the 19th day of September, 1922. The deed of trust, known as the Curtis deed of trust, was executed September 2, 1922, and thereafter the Amarillo National Bank accepted under said deed of trust, as testified to by C. T. Ware. Hence the question here is: All of such transaction having occurred after the filing of the suit of the National Bank of Commerce v. Ozier on August 29, 1922, and before the service of citation on Ozier, the 19th day of September, 1922, was that suit then pending so as to require the application of the harsh rule of lis pendens as against appellee Shelton? In other words, wa-s the filing of the petition and the issuance of citation sufficient to put Shelton on notice of the pendency of the suit so as to bind him (or the Amarillo National Bank) under the judgment in that case?
¶11 In the ease of Smith v. Cassidy, 73 Tex. 165, 166, 12 S. W. 16, our Supreme Court holds as follows:
“The first question for decision then is, Was Swenson a mortgagee pendente lite? At the time he took the mortgage, so far as the record shows, nothing had been done in the case except to file the original petition. There is nothing to show that King had ever been served'with process, and if the original answer was filed by King it was subsequent to the date of Swenson’s mortgage. Unless therefore the lis pendens began with the filing of the petition Swenson was not affected by it.
“In the case of Board v. T. & P. Ry. Co., 46 Tex. 327, it was said that ‘in some of the courts where lis pendens dates from the service of the subpoena and filing of the bill the suit or action is begun by issuing the subpoena or other process, and not as with us by the filing of the petition or bill setting forth the cause of action.’ It was intimated that for this reason a different rule might prevail with us, and the lis pendens be held to commence from the filing of the petition. In England as well as in the United States Courts, … suits in chancery are commenced by bill, which prays for the subpoena to be afterwards issued. Yet so far as we have been able to discover, without a single dissent, notice by lis pendens does not take effect until the subpoena is served. 1 Vern. Rep. 319; [Murray v. Lylburn], 2 Johns. Ch. [N. Y. 441] 584; Murray v. Ballou, 1 Johns. Ch. [N. Y.] 576; Bailey v. McGinniss, 57 Mo. 362; see Wade on Notice, § 348; and authorities cited in note 2.
“In some of the states suits are commenced as in our own, by filing a petition, and in others by issuing a writ; but without regard to the act by which the suit is commenced for other purposes, it seems to be universally held that for purposes of notice by lis pendens it does not begin till service of process or its publication in case of an absent defendant. Lyle v. Bradford, 7 B. Monr. 512 [7 T. B. Mon. (Ky.) 111]; Bennett [Bennet] v. Williams, 5 Ohio, 461; Goodwin v. McGehee, 15 Ala. 241; Metcalf v. Smith, 50 [40] Mo. 575. Against such an array of authorities we should not feel inclined to oppose our unsupported opinion under any *319 circumstances, but we see no reason to doubt their correctness upon principle. We think, therefore, that Swenson was unaffected by any notice of this suit at the time, the mortgage was executed.”
¶12 The statute then in effect provided for the bringing of a second suit of trespass to try title, and in that case it was so brought, appeal was taken to the Supreme Court, and in an opinion by the Commission of Appeals in the case of Cassidy v. Kluge, 73 Tex. 159, 12 S. W. 13, in which the right to bring a second suit was sustained, and in which the question of the finality of the judgment in the first ease was discussed, the Commission of Appeals held that the judgment in the first instance was not fiqaVbut such opinion nowhere overrules the opinion of the Supreme Court in the case of Smith v. Cassidy, supra, but simply holds that the Supreme Court, when they rendered the opinion in the last-named case, were passing upon the question from the standpoint of the record not showing service, when, as a matter of fact, service was complete at the time of the signing of the mortgage in controversy, but that the parties to that suit had assumed that the filing of a petition was the beginning of the suit and that lis pendens did apply from that time. Consequently, the decision in the ease of Smith v. Cassidy, 73 Tex. 165, 166, 12 S. W. 16, upon the law, was in no wise changed.
¶13 In the ease of Hanrick v. Gurley, 93 Tex. 469, 54 S. W. 352, the Supreme Court says:
“We assume, as did the court below, that Powers was not affected with notice as a purchaser pendente lite, inasmuch as when he bought from Eliza M. O’Brien she had not been duly served with process making her a party to the suit, though the amended petition had been filed against her, containing the allegations as to the character of the conveyances to her.”
¶14 See, also, Sparks v. Taylor, 99 Tex. 421, 90 S. W. 485, 6 L. R. A. (N. S.) 381; Humphrey v. Beaumont Irrigating Co., 41 Tex. Civ. App. 308, 93 S. W. 180.
¶15 Appellant O’Brien contends that the deed of trust to Curtis is not a deed of trust, but is deed of assignment. I do not think this is correct. There is no provision in the instrument for the trustee to take possession of the property; on the contrary, the instrument expressly provides for the possession to remain in the grantor, and such grantor is obligated to its proper care. Such instrument also provides for sale by the trustee only in the event the grantor fails to pay»the debts named in it, and also provides for the payment of any residue of the selling price to the grantor after the payment of said debts. Preston v. Carter, 80 Tex. 388, 16 S. W. 17; Collins v. Sanger, 8 Tex. Civ. App. 69, 27 S. W. 500; H. T. Simon-Gregory D. G. Co. v. Dean (Tex. Civ. App.) 35 S. W. 305; Watterman v. Silberberg, 67 Tex. 100, 2 S. W. 578; Tittle v. Vanleer, 89 Tex. 174, 29 S. W. 1065, 34 S. W. 715, 37 L. R. A. 337; Hall v. Conine (Tex. Civ. App.) 230 S. W. 823; Scott v. McDaniel, 67 Tex. 315, 3 S. W. 291.
¶16 Whatever the rule may be in other jurisdictions, the rule in Texas is that a deed of trust is not a conveyance of title, but is only a security for a debt. Lockridge v. McCommon, 90 Tex. 234, 239, 38 S W. 33; Adams v. Bateman (Tex. Civ. App.) 29 S. W. 1124, 1125 (writ denied); East Texas Fire Ins. Co. v. Clarke, 79 Tex. 23, 25, 15 S. W. 166, 11 L. R. A. 293. Hence the fact that the second deed of trust given by Ozier to O’Brien and the National Bank of Commerce contained a warranty does not change the status of such instrument from a mere security to a conveyance of title, and such warranty is inoperative to convey anything except as security. If the title to the land conveyed should fail, the recovery by the party for whose benefit the deed of trust was executed would be measured by the amount of his debt and interest.
¶17 Under the judgment rendered by the trial court in the case at bar, Perkins, the plaintiff, was required to sell the east one-half of the land before proceeding to sell the west one-half. I wish to say here that I do not concede that the authorities cited in the majority opinion are applicable to the facts in this case, and I do not think that the facts justify the application of the rule for marshaling securities. O’Brien, under the deed of trust to Embry, had a prior lien on the west one-half of the land, subject only to the vendor’s lien held by Perkins. Shelton and others, under the Curtis deed of trust, had a first lien on the east one-half of the land, subject only to Perkins’ vendor’s lien, and had on the west one-half a lien that was subordinate to Perkins’ lien and to O’Brien’s lien. In point of time, O'Brien’s lien bore the first date. O’Brien was, as to the beneficiaries under the Curtis deed of trust, a pri- or lienholder on the west one-half, and he had the clear right to have paid off the subsequent lienholders who were not made parties, and to have concluded the whole matter by the judgment of the National Bank of Commerce v. Ozier, and to have been subro-gated to such beneficiaries’ rights, but, as he did not do this, or tender performance, and has never offered to do this, then the junior lienholder in the person of Shelton did have the right to pay off and discharge O’Brien’s lien and to be subrogated to O’Brien’s rights. This Shelton did. He deposited the full amount of the judgment under which O’Brien claimed in the registry of the court to O’Brien’s credit. When he, Shelton, did this, he was entitled to exercise his equity of redemption and to be subrogated to every right then possessed by O’Brien. Pierce v. Moreman, 84 Tex. 596, 20 S. W. 821; Evans v. Borchard, 8 Tex. Civ. App. 276, 28 S. W. 258; Wiggins v. Wagley (Tex. Civ. App.) 190 S. W. 736; Long v. Richards, 170 Mass. 120, 48 *320 N. E. 1083, 64 Am. St. Rep. 281; Wiley v. Ewing, 47 Ala. 418; Harrison v. Wyse, 24 Conn. 1, 63 Am. Dec. 51; King v. Brown, 80 Tex. 276, 16 S. W. 39; Kearby v. Hopkins, 14 Tex. Ct. App. 166, 36 S. W. 506, 513 (writ denied); Hunt v. Makemson, 56 Tex. 9, 16; Whitehead v. Fisher, 64 Tex. 638, 642; Maloney v. Eaheart, 81 Tex. 281, 16 S. W. 1030; Sam P. Hodgen et al. v. William Guttery, 58 Ill. 431; Calhoun v. Dumpkin, 60 Tex. 185; Citizens’ National Bank v. Strauss, 29 Tex. Civ. App. 407, 69 S. W. 86, 89; 2 Wiltse on Mortgage Foreclosure, § 1100, p. 1492, section 1105, p. 1495.
¶18 Ií a senior mortgage has been foreclosed by a decree and.sale, and the junior mortgagee has not been made a party to the foreclosure, he may, notwithstanding the decree of sale, file his bill against the purchaser to redeem such senior incumbrance, thereby becoming substituted to the rights and interests of the original mortgagee. 4 Ann. Cas. 848.
¶19 Because O’Brien had foreclosed as to Ozier, this did not bar the equity of redemption that was formerly vested in Ozier. By the mortgage to Curtis, Ozier transferred his equity of redemption and preserved it in Shelton under that deed of trust. A foreclosure by a prior mortgagee of the mortgagor’s interest does not cut off the second mortgagee from his equity of redemption which he acquired with his mortgage. Goodman v. White, 26 Conn. 317.
¶20 As I understand the opinion of the majority, they practically hold that, O’Brien having been diligent and having foreclosed his lien, he had thereby foreclosed Ozier’s equity of redemption, and, notwithstanding that Shelton was not a party to the suit in which such judgment was rendered, and notwithstanding lis pendens had not precluded him from asserting his rights, that there was sufficient virtue left in the judgment to enable O’Brien to make such judgment effective in cutting off Shelton’s right to redeem.
¶21 If Shelton was not concluded by the judgment, if there was a failure to lis pendens, the suit of the National Bank of Commerce v. Ozier as to Shelton stood as if it had never been brought. It had, and could have, no existence as to him. It seems to me absurd, then, to say that,' while it had no existence as to him, yet it did have as to Ozier. Consequently, through Ozier, Shelton was deprived of one of his substantial rights — the right to redeem from O’Brien. To hold this is to hold that the judgment could effect indirectly what the law would not permit it to do directly. A decree of foreclosure cannot be made to extend beyond the natural effect of the words of- the decree. A right vested in a party will not be defeated by extending the language of such judgment. In the case of Goodman v. White, supra, the court says:
“The impropriety of extending the equitable consequences of a decree of foreclosure beyond the natural effect of the words used will appear still more clearly, when it is remembered, that not only are the relations of the second mortgagee to the first, <and also to the mortgagor, forcibly changed by a proceeding to which he is not a party, and of which he may have no notice, but the mortgagor is also deprived of Ms rights as against the second mortgagee, to the same extent as if the second mortgagee had himself foreclosed him. In other words, a petition of foreclosure brought by a first mortgagee will, on the principles now contended for, invest him with all the rights of the second mortgagee against the mortgagor. The light to redeem the second ■ mortgagee may be a valuable privilege to the mortgagor even after the foreclosure by the first incumbrancer; it may enable him to reclaim his estate; and it would seem as he should only be deprived of this right by a proceeding instituted by the vol-, untary act of the second mortgagee, or by his own. … ’’
¶22 But it is said that O’Brien has been diligent and has fortified his rights by. legal action, and that equity follows the law. Was O’Brien diligent? It is true that he took a short cut to get his money, but in bringing his suit he deliberately left out the very parties who were equally interested with him in getting their money. This is shown by his making the trustee alone and by his failure to make the beneficiaries parties to his suit. It is true that the suit was brought by the National Bank of Commerce, but, as O’Brien is claiming his rights under that suit, I refer to the transactions as being O’Brien’s, as I refer to the Curtis deed of trust when I speak of Shelton’s rights.
¶23 Why did not O’Brien make the beneficiaries under the Curtis deed of trust parties to the foreclosure suit of the National Bank of Commerce v. Ozier? In fact, because he was not diligent under' the law. He could have settled every right in that suit by making the necessary parties, and could have litigated all outstanding rights and disposed of them in that one suit, and, because he did not, he was not diligent. The law will not impute diligence to a party; he must show that he has been diligent. Again, to admit of the claim that O’Brien is to receive benefits from a court of equity puts in motion the very judgment which the law says shall not bind Shelton. If Shelton is allowed to i>revail in this case, O’Brien will get, yea; has got,, every dollar coming to him. If O.’Brien prevails, the balance of the creditors may or may not get their money. Is there any equity in this? O’Brien has never offered to do equity, but is simply holding on to what the law has given him. The majority opinion tenderly applies the doctrines of equity to O’Brien’s conduct when O’Brien has not offered to do equity, and is asking for no equitable rights except the marshaling of assets prayed for by him. If we consider that O’Brien’s purchase under the order of *321 sale issued in the case of National Bank of Commerce v. Ozier as to Shelton is a nullity, something that has no existence, then the whole matter is brought hack to where it is a contest between two lienholders under deeds of trust. Under his lien O’Brien is entitled to his money. When Shelton pays him, O’Brien has all that he is entitled to; he passes out of the case. It is unthinkable that O’Brien should, by virtue of a judgment which the law holds does not conclude Shelton, be allowed to “backfire” and have such judgment perform the ofiiee which the. law says it shall not do;
¶24 There is another matter in this connection that I desire to notice. • Shelton had the privilege of intervening in the case of National Bank of Commerce v. Ozier. He could have done it if he had wanted to. But, as he did not, this is not to be charged to him in such manner as to again make the judgment obtained in that case conclude his rights. As stated, his was the privilege of intervening and not a duty. McDonald v. Miller, 90 Tex. 309, 39 S. W. 95.
¶25 Did O’Brien, or Shelton, after subrogation to O’Brien’s rights, have the right to compel Perkins ta sell the east one-half of the land before proceeding to sell the west one-half? I think not." O’Brien, having received his money, had no standing in court upon any other claim for relief. Shelton certainly had no right to. the marshaling of securities, for the reason that he had no pleading upon which he might be granted such relief. However, while I think this sufficiently disposes of the question of marshaling securities, I do not want to be understood as indorsing the propositions advanced in the majority opinion, and here state my position. The doctrine of the marshaling of securities is one of equitable origin, and is not an absolute rule of law. 3 Pom. Eq. Juris. § 1225. It is a mere inchoate equity, and not an equity which fastens itself upon the situation at the time the successive securities are taken, but one to be determined at the time the marshaling is invoked. 18 R. C. L. p. 456. In applying the litigant’s right to have the superior lienholder marshal his securities as to a part against the subsequent lien of the whole of the tract, where such prior lien-holder has not offered to do equity, the trial court erred in rendering judgment that Perkins, the blanket lienholder, should first sell the east one-half of the land upon which the Curtis lien is a secondary lien, and Such judgment is not supported by any principle of equity, and I think the weight of authority is decidedly against the correctness of such judgment and in favor of the proposition that the superior lienholder should foreclose upon the tract as a whole without reference to such marshaling. Gilliam v. McCormack, 85 Tenn. 597, 4 S. W. 521; Newby v. Norton, 90 Kan. 317, 133 P. 890, 47 L. R. A. (N. S.) 302; Green v. Damage, 18 Ohio, 428, 51 Am. Dec. 458; Leib v. Stribling, 51 Md. 285; Hoy v. Bramhall, 19 N. J. Eq. 563, 97 Am. Dec. 695, note.
¶26 I am, therefore, of the opinion: (1) That the pendency of the suit of the National Bank of Commerce v. Ozier was not notice to appellee Shelton, for the reasons stated, and he was not estopped to assert his rights in this suit; (2) that appellee Shelton is entitled to exercise his equity of redemption as against appellant O’Brien, and entitled to be subrogated to O’Brien’s rights and claims; (3) that the marshaling of securities requiring Perkins to first sell the east one-half of the tract of land before proceeding to sell the west one-half should not be permitted; (4) that the, instrument given by Ozier to Curtis, trustee, is not an assignment, but is a deed of trust; (5) that the warranty clause attached to the deed of trust under which the National Bank of Commerce held and asserted its lien did not change the status of that deed of trust from mere security to a conveyance of title.
¶27 I am, therefore, of the opinion that Perkins should proceed with the sale of the whole tract of land under his purchase-money lien, and with the proceeds o'f such sale pay, first, the sums due upon the notes held by him; second, if there be a residue after the payment of the Perkins lien, it should be divided into two sums proportionate in value as the trial court shall ascertain each tract to have, the east one-half and the west one-half, to the other, and that of such sums so divided the "residue from the sale of the west one-half, if any, shall then be applied to the payment of all claims due Shelton under his subrogation to O’Brien, and that the residue on both tracts, if any, shall then be applied to the payment of the beneficiaries named in the Curtis deed of trust. Should there then be a residue after 'the payment of' all such debts, such residue shall be paid over to the defendant Ozier.
¶28 This last provision is in view of my idea that, Shelton being subrogated to O’Brien’s rights, as between him and the other beneficiaries in the Curtis deed of trust and as between them and Ozier, the O’Brien judgment not existing, Ozier, as the owner of the final right of redemption, would be entitled to the payment of any residue after the payment of all the debts named.