The plaintiffs in error, who were plaintiffs in the trial court, sought to recover the land in controversy in an ordinary action of trespass to try title. They claim under a deed absolute upon its face, which the defendants, who claimed under a conveyance from the grantor's assignee in bankruptcy, alleged to have been only a mortgage. The plaintiffs, in a supplemental petition, prayed, that in the event the court should be of opinion that the deed was intended only as a mortgage, that they have judgment for the debt, and a decree foreclosing the mortgage for its payment. To this the defendants pleaded, that the debt alleged in the supplemental petition was barred by the statute of limitations.
The case was tried by a jury, who found that the deed was in fact a mortgage, and that the debt it was intended to secure was barred by limitation. Thereupon the court gave judgment for the defendants. The Court of Civil Appeals affirmed the judgment of the trial court.
We have given the case a very patient and deliberate consideration, and have concluded, that the appeal was properly disposed of by the Court of Civil Appeals upon all the points presented. The conclusions of that court are ably supported by a well considered and elaborate opinion, and it would serve no useful purpose to review questions therein discussed.
I will say, however, that if it were an open question in this court, I *Page 200 should hesitate long before giving my assent to the rule laid down in Mann v. Falcon, 25 Tex. 271. It seems to me, that when an absolute conveyance of land is made for the purpose of securing a debt merely, that the grantee takes the legal title subject to the equitable right of the grantor to recover the land upon payment of the debt. Such being the rights of the parties, whatever the form of the action, in my opinion, the grantor should not receive the aid of a court of equity except upon condition that he do equity; that is, that he pay the debt, whether barred by limitation or not. An examination of the authorities satisfies me that this is the rule of decision in every State of the Union, except in this State and one other.
But the doctrine announced in Mann v. Falcon, supra, was reaffirmed by this court in Boggess v. Brownson, 59 Tex. 417, and perhaps in other cases. It has become a rule of property which is binding upon the courts, and I fully concur in the proposition that it should be followed.
That a purchaser from a mortgagor may, as a general rule, plead the statute of limitations to the debt secured by the mortgage, is settled in this court. Cason v. Chambers,62 Tex. 305. In this case, however, the mortgagor was adjudged a bankrupt, and the land was sold by his assignee in bankruptcy, subject to existing liens. Whether this fact ought to take the case out of the general rule or not, we have had some doubt. We have referred the question both for argument and citation of authority, but no direct authority has been produced, nor have we found any. Not having found that an exception has ever been recognized in such a case, we are of opinion that the general rule ought to prevail.
The judgment of the Court of Civil Appeals and that of the trial court is affirmed.
Affirmed.
Delivered June 28, 1894.