ON MOTION EOR REHEARING.
Separate motions for rehearing have been filed by Duke and Berry, and by the appellees, the children of Mrs. Berry, Eg]in Brothers and their vendees. We deem it unnecessary to further discuss the questions presented in the motions of Berry and Duke.
The appellees insist that we erred in refusing to affirm that portion of the judgment of the trial court, which directed an application of the $10,000 received by Duke from Eglin Brothers, as a credit on the Bemis mortgage, and thereby discharging that much of the property from the mortgage lien. In the original disposition of the case, we based our reversal of this portion of the judgment upon the ground that the District Court was without jurisdiction to make such -an order, it appearing from the pleadings -and from the evidence, that an administration upon the estate of Mrs. Berry, to which the property subjected to the mortgage belonged, was still pending in the County Court of Marion County. It is now urged that, the District Court having properly assumed jurisdiction of the cause of action, this particular relief was a part of that' to which the appellees were entitled in disposing of all the issues involved in the main controversy. In support of that proposition reference is made to the following cases-Chapman v. Brite, 4 Texas Civ. App., 506, 23 S. W., 514; Hall v. Hall, 11 Texas, 554; Bank v. Cresson, 75 Texas, 298, 12 S. W., 819; Mitchell v. *307Rucker, 22 Texas, 67; Dickenson v. McDermott, 13 Texas, 248. Most, if not all of these, were suits hy administrators seeking judgments upon claims due the estates then in process of administration, in which the defendant was permitted to plead as an offset, a debt due him from the estate or from the decedent. This was allowed upon the ground that the counter-claim operated as a pro tanto extinguishment of the claim sued on, and to that extent was a legal defense to the action’. Mitchell v. Rucker, supra. But the following cases seem to place some limitations upon the liberality of the indulgence there accorded: Atchison v. Smith, 25 Texas, 230; Alford v. Smith, 40 Texas, 85. In the last case cited, after referring to the practice of permitting a party when sued by an administrator to plead a claim held by him as an offset, the court said: “While, however, this is the well established general rule, it has been heretofore held by this court, that this rule was not without exception, and that sometimes, cases under peculiar circumstances would arise, rendering the interposition of the equitable jurisdiction of the District Court absolutely necessary to prevent great hardship and oppression. Otherwise, the very law enacted for the benefit of the creditor of the estate, and intended to enable him to secure the speedy payment of his claim, might be wantonly perverted to his injury, if not utter ruin.” But admitting that the principle invoked by the appellees is entitled to all the latitude given it in the cases cited, it is not clear how that principle can be made applicable to the facts here under consideration. We may concede the correctness of the proposition that “the District Court having acquired jurisdiction of the cause, its jurisdiction was eo-extensive with all questions which were necessary and proper to be decided in the final determination of the subject-matter in litigation between the parties,” yet it does not follow that the result here would be different. The question still remains, — was this an issue necessary and proper to be decided in the determination of the subject-matter of this suit? An answer to that question will necessitate an inquiry into the nature and purpose of this action. An analysis of the original petition upon which the case was tried discloses two distinct groups of parties plaintiff, asserting title to separate and distinct portions of the property involved. (This defect does not appear to have been called to the attention of the trial court). There were the children of Mrs. Berry, who claimed the land and only a portion of the timber, while the Eglins and their vendees claimed the remaining timber on a part of the land. Hone of the property was claimed by these two sets of plaintiffs in common. There being no community of interest in the subject-matter of the suit, there was no community of rights in the relief sought. To simplify the inquiry, we shall consider each of the two groups separately, with reference to the rights asserted and relief sought. A careful examination of the petition shows the following, as the substance of the grievances alleged:
On the 9th day of December, 1907, J. H. Berry, assuming to act individually and as the executor of the estate of Mrs. Berry, executed a conveyance to 0. T. Duke. On the same day, as a part of the same transaction, Duke reconveyed the land.to Berry, reserving the timber. *308This conveyance and reconveyance was the result of a conspiracy to defraud the plaintiffs, and invest Berry with the title to the land".
It is charged that the above mentioned conveyances were void for the reason that Berry owned no title or interest in the property, and was not the independent executor of the will of Mrs. Berry.
It is claimed that as a part of the consideration of the transfer from Duke to Berry, the latter executed and delivered to Duke two promissory notes for $3,039 each, payable to the order of Duke in one and two years thereafter, in which liens were attempted to be given on the property involved, and charging that these constituted a cloud upon the title.
It is averred that Bemis was the owner and holder of a note 'for $7085 secured by a lien on the premises described, of which Duke afterward became the equitable owner and holder; that while such owner and holder, Duke sold the timber situated upon the land involved in this suit to Eglin Brothers, for the sum of $10,000; that-the consideration for the sale of the timber was in excess of the amount of the Bemis debt, and is sufficient to fully pay it.
It is also alleged that the timber was sold to Eglin Brothers for a fair consideration and the purchase price applied to the settlement of the Bemis mortgage, or debt; that, by reason of the fact that the mortgage is upon the records of Harrison County, apparently unsatisfied, it- constitutes a cloud upon the title of plaintiffs to both the land and the timber, and an injunction restraining further transfers is sought during the pendency of this suit.
The prayer for relief asks for an injunction restraining the defendants from making any transfers of the notes, claims and judgment; for the recovery of the land and timber, and a judgment removing the cloud from their titles to the same; that whatever claims may be due the defendants after applying the $10,000 to the payment of the Bemis debt, be determined in this suit; that all claims of the defendants to the premises, liens, notes, etc., affecting the title, be canceled, and for general relief.
In their motion for rehearing, appellees do not point out which group of them is aggrieved by the ruling of which they complain; the objection is urged by all. We shall first consider the Eglins and their vendees with reference to the subject-matter of the suit, and their rights to the relief denied them. It is manifest that they can claim no rights by reason of being associated as parties plaintiff with the Berry children in this suit, which they could not have asserted in an independent action. Let us assume, therefore, that the suit was instituted by them alone; what would then be the wrongs of which they might complain, and what the relief to which they would be entitled under the same character of pleading? Clearly, they could not claim injury from the transfers between Duke and Berry, which are here sought .to be canceled. On the contrary, with these deeds canceled they would be without the vestige of a title to the timber. They could not ask that the Bemis mortgage be canceled as a cloud upon their title, because the evidence shows that there is a sum still due, and no tender of payment is made. They have alleged that they purchased from Duke "while he was the owner of the Bemis mortgage. It is contended *309by counsel in the motion that we must treat Duke, in making this sale, as a mortgagee in possession. If this be correct, then the sale and payment of the purchase money to Duke ipso facto discharged the timber from the burden of the lien, and neither Duke nor any subsequent holder can hereafter assert it against that portion of the property. 2 Daniel on Negotiable Instruments, sec. 1233a; 7 Cyc. 1038. The evidence shows that Duke sold to them with a warranty; that the amount of the payment he received was insufficient to discharge the entire debt, and that he is now entitled to a balance of nearly $3000. It is not claimed that Duke is insolvent, or that he is attempting to again subject the same property to the payment of his debt. Hpon the whole pleading, we think the Eglins and their vendees have failed to state grounds for any sort of relief, and upon the whole case it appears that they must rely upon the grace of the Berry children for their enjoyment of the timber rights which they now claim. From what has been said, it seems to follow that the compulsory application of the $10,000 as a payment on the Bemis debt was not a part of the relief to which these plaintiffs were entitled.
Are the Berry children in any better attitude to complain? As stated in the original opinion, the rights of the Eglins to the timber depended upon the voluntary acquiescence of these plaintiffs in the sale by Duke. If their contention concerning the nature of the will of Mrs. Berry and the extent of the powers it conferred on Berry as executor be correct, then the sale by Duke to the Eglins was not voidable merely, but absolutely void. In that view, the children occupy the position in this suit of attempting to make Duke pay them the consideration which he wrongfully collected from the Eglins. The purpose of the suit on their part was to cancel the deeds passed between Berry and Duke, and clarify their title to the land. In so far as the cancellation of those deeds was concerned, that relief was not contingent upon any other thing being done. They were not entitled to have the Bemis mortgage canceled, because a portion of it was still unpaid, even after making the application of the $10,000, and no offer was made to pay this balance. We do not understand that a debtor is in any position to invoke the authority of a court to adjust the application of payments till he tenders full settlement of the debt, or till his creditor, in seeking satisfaction, denies a just application of some fund which equity would accord to the debtor. Neither of those situations is presented by the facts and pleadings in this case. Moreover, the Berry children joined in the averment that the money paid by the Eglins had been applied on this mortgage. It is true appellees have alleged that Duke converted the timber, Jmt the evidence does not sustain this allegation. All that Duke did with reference to the timber was to execute a deed conveying it to the Eglins. If the timber is to be regarded at that time as a part of the freehold, it was not susceptible of being converted by that manner of dealing with it. Willis v. Morris, 66 Texas, 632, 1 S. W., 799. If it was personalty, the Berry tihildren were not, by Duke, deprived of its possession. The testimony shows that whatever portion of the timber had been cut and removed, had been taken by the Eglins or their vendees, with the consent of the Berry children. If our conclusions upon this feature of the case are correct, there is *310no merit in the assignment claiming that we erred in refusing to affirm the personal judgment against Berry.
The motion is overruled.
Affirmed in part, and in part reversed and rendered. Writ of error refused.