¶1 (dissenting).
¶2 I do not concur in the above majority opinion.
¶3 It is my opinion that the judgment entered in cause No. 11968-B, on the 18th day of August, 1931, was res judicata of the fact that Balcom did not have title to this land at that time, and he would be forever barred from again adjudicating this question. It is plain that the present suit is an attempt to again adjudicate this same title, and the question of an after-acquired title is not in this case. Cause No. 11968-B was a “Trespass to Try Title Suit” between Bal-com and the Reed Automobile Company, Inc., of the land herein involvéd. Stratton purchased from Reed Automobile Company, Inc., on November 12, 1932, after this judgment was entered, and thereby became a privy of Reed Automobile Company, Inc., and entitled to all of the benefits of the judgment in cause No. 11968-B.
¶4 Appellant Balcom filed a motion to dismiss .cause No. 11968-B, including Reed Automobile Company, Inc.’s, cross-action. He stated in this motion that title to this land had been divested out of all the parties to the suit and invested in A. K. Stratton (appel-lee herein) as a result of a trustee’s sale of the land. Reed Automobile Company, Inc., replied to the motion admitting these facts to be true. The trial judge thereupon- dismissed the cause and entered a judgment to that effect. This dismissal left Reed Automobile Company, Inc., and its tenant, P. J. Cain, in possession of the land.
¶5 In entering this judgment of dismissal the court necessarily found, among other things, that on the 18th day of August, 1931,' appellant, Balcom, did not have any interest in the land which is the subject-matter of this suit. Balcom did not simply take a voluntary nonsuit, but, upon the facts stated in his motion,- which were admitted to be true by Reed Automobile Company, Inc., secured •not only a. dismissal of his own cause of action, but also of Reed Automobile Company, Inc.’s, cross-action. This motion was in the nature of a retraxit of his own cause, and a disclaimer as to the cross-action, and a judgment based thereon is a judgment on> the merits and res judicata of all matters necessarily found by the court, binding upon the parties to the suit and their privies. Strat-ton is a privy of Reed Automobile Company, Inc., having afterwards, on November 12, 1932, purchased this land from the automobile company. 26 Tex. Jur. p. 88, § 380, p. 97, § 397, and p. 102, § 400.
¶6 The present suit was instituted by Balcom on June 13, 1933, and he again seeks to establish the fact that he had, prior to the date of the judgment in cause No. 11968-B, acquired title to this land. This judgment stands as a perpetual bar to his right to ever again litigate his right to this land, unless his claim be based upon a title acquired subsequently to this judgment. There must be an end to litigation, and a party will not be permitted to come into court and secure a dismissal not only of his own cause of action, but of the cross-action of the opposing party, upon a representation that he does not have any interest in certain land, and after-wards, without making attack upon this judgment of dismissal, institute a new suit against the same parties and their privies, setting up a title alleged to have been acquired by him prior to such judgment and necessarily held by him at the time he made the representation that he did not have any *832 interest in the land, and again have his former title adjudicated.
¶7 I am further of the opinion that Stratton occupies the position of a mortgagee in lawful possession, and cannot be ousted by Bal-com, who claims under the mortgagor, Brouse, without tendering to Stratton the full amount due to him and secured by his mortgage.
¶8 This suit was instituted by Balcom. He put to the test his right to the title and possession of these premises. He alleged a common source of title and in attempting to prove his case he established that he was in the position of a mortgagor attempting to oust a mortgagee in possession without tendering him the amount due under his lien. The trial judge was called upon to decide which of the two, under the record made, should recover the title and possession of this land. The trial judge refused to oust the mortgagee in possession and award the land and premises to the mortgagor who had not tendered the amount due. This was the only proper judgment he could render. He could not refuse to decide the case. The majority opinion plainly states that he could not have found in favor of Balcom.
¶9 The only way this record can'be changed upon another trial is for Balcom to tender to Stratton the amount due to him under his first lien. We have no assurance that Bal-com will do this. He did not do so in the lower court when it was his duty to do so if he desired to assert his equity of redemption. He does not state in his brief that he is willing to mate a tender, if given another chance, and does not here pray for that character of relief. It is not proper for this court to reverse and remand a judgment in order to enable a litigant to do that which he has already had an opportunity to do and has not done. Especially is this true where we have no intimation that such an opportunity is desired.
¶10 The fact that the mortgagee in posséssion cannot be ousted by the mortgagor or those claiming under him without a tender of the amount due under the lien is so well established that it is scarcely necessary to cite authorities. A splendid discussion of this question is found in 29 Tex. Jur. p. 881, § 70, and authorities there cited; and also in the 7th Tex. Law Review, beginning on page 170.
¶11 Reference is made in the majority opinion to the case of Elliott v. C. C. Slaughter Co. (Tex. Civ. App.) 236 S. W. 1114, as being a parallel case. The cases are parallel, and in the Elliott Case the trial judge refused to permit those standing in the shoes of the mortgagor to recover in a trespass to try title case, from those standing in the shoes of the mortgagee in possession, and such judgment was affirmed upon appeal. It is true in the Elliott Case the trial judge did order the land sold and the mortgagee first paid, any amount remaining to go to those standing in the shoes of the mortgagor. This in effect permitted the junior mortgage holder to force the senior mortgage holder to foreclose his lien. The mortgagee in possession was the -only one that could complain of this action, and apparently no complaint was made. The appellate court had this to say about this phase of the ease: “No question is raised by either party, though there is some such suggestion in appellees’ argument, that requires us to determine whether it was necessary for the court to have decreed a sale of the premises upon failure of the plaintiffs to redeem nor is any question raised as to the assessment of the amount fixed as necessary to redeem.” It is quite clear to my mind that if the question had been properly raised the court would have held in that case that it was not proper to decree the premises to be sold.
¶12 Where a plaintiff in a trespass to try title case fails to show that he is entitled to recover the land and premises sued for, the judgment should be that the plaintiff take nothing, which is equivalent to a finding in favor of the defendant. Article 7391, R. S. 1925; Hoodless v. Winter, 80 Tex. 638, 16 S. W. 427; Provident Nat. Bank v. Webb, 60 Tex. Civ. App. 321, 128 S. W. 426; Dunn v. Land (Tex. Civ. App.) 193 S. W. 698; Woodley v. Becknell (Tex. Civ. App.) 214 S. W. 932; Taylor v. W. C. Belcher Loan & Mortgage Co. (Tex. Civ. App.) 265 S. W. 403; Stark v. Hardy (Tex. Com. App.) 29 S.W.(2d) 967, setting aside judgment, Id. (Tex. Civ. App.) 19 S.W.(2d) 394.
¶13 The trial judge rendered the only proper judgment he could render, and it should be here affirmed. I, therefore, respectfully dissent from the majority opinion.