ON MOTION FOR REHEARING.
Questioning the correctness of the conclusion reached by us that, had a foreclosure of the vendor’s lien asserted by Potter and Mrs. Metz on the 167.63 acres tract .been had during the time Williams owned the 67-1- acres under his deed from Francis, the judgment effecting such foreclosure should have directed the 67-1 acres to be first sold to satisfy it, appellant argues that the warranty in the deed from Williams to Burden “was,” quoting the language of the motion, “an absolute lifting of the lien from the 67-1 acres and placing it on the 100 acres”; that Mrs. Hicks purchased the 100 acres knowing same had been so charged, while in Williams’ hands, with the entire debt; that as between Burden, the first purchaser of a part, and Mrs. Hicks, the purchaser subsequently of the remainder of the tract, the equities arising from the order of their respective purchases had become irrevocably fixed; and that, therefore, the fact that Williams, at a time when his indebtedness evidenced by the vendor lien notes remained unpaid, again became the owner of the 67-1 acres, should not be held in any way to have affected those equities. The argument, it seems to us, ignores the reason existing for the rule that requires, where real estate bound by a lien has been alienated in separate parcels to various persons at different times, the parcels to be sold, when the lien is to be satisfied, in the inverse order of their alienation; and also ignores the fact that the rule, being a doctrine of equity, is not an absolute one, hut will yield to the circumstances of a particular case and will not he applied where its operation would produce an inequitable result. To have required the 100 acres owned hv Mrs. Hicks to be first sold for the purpose of satisfying Williams’ debt, at a time when he owned the 671 acres, would have been to ignore *133entirety the reason for the rule and to use it to accomplish the contrary of that which it was intended to accomplish. For surety it would have been inequitable, as between airs. Hicks and Williams, to have required property he had conveyed to her with warranty of title to be sold to pay his debt, before selling property belonging to him and charged with the payment of the same debt. If Williams, while owner of the 67 \ acres under his deed from Francis, did not have a right, on a foreclosure of the Potter and Metz lien-, to have the 100 acres purchased of him by Mrs. Hicks first sold, then certainty appellant as the purchaser of the title reacquired by Williams to the 67-1 acres, did not have such a right. As such a purchaser he could have no greater right than Williams had.
It is further insisted in the motion that we were in error in holding that Shirley, and appellant a-s his grantee, did not, by the payment of the note for $1425 given by Burden to Williams and the payment of the note for $250.55 given by Francis to Burden, become subrogated to the rights of the Sanger National Bank, the holder thereof, and attention is called to the fact that the statement in the opinion that Shirley had assumed the payment of those notes is without support in the record. The erroneous statement in the opinion was due to the fact that the wwiter misread the record. Francis assumed the. payment of the $1425 note when he purchased from Burden, and Williams assumed the payment thereof and of the $250.55 note when he purchased from Francis. But Shirley, when he purchased of Williams, did not asssume the payment of said notes. However, on another ground than the one mentioned in the opinion, and without reference to the contention made by appellant as to his right to be subrogated to equities of the bank as the holder of the $1425 and $250.55 notes, we must hold that the conclusion reached as to the disposition to be made of the appeal rvas a correct one. By his pleadings appellant asserted that he was entitled, as the owner of the 67-1- acres, to have the decree to be entered foreclosing the Potter and Metz lien to provide for the sale first of the 100 acres belonging to Mrs. Hicks, hut nowhere in his pleadings did he set up any right to relief on account of the fact that he had paid to the bank as the holder thereof the amounts due it on the $1425 and $250.55 notes. He could not be subrogated to the rights of the bank as the holder of the notes, without pleading and proving facts entitling him to such subrogation. Crebbin v. Moseley, 74 S. W., 816; Silberborg v. Trilling, 82 Texas, 525.
The motion is overruled.
Reformed and affirmed.
Writ of error refused.