ON RE-HEARING.
Conaway, Justice.It is urged that the defectively executed trust deed held by the trial court and by this court to be an equitable mortgage, •became such only when declared to be so by the judgment of the trial court. We are of the opinion that such is not the law. The court did not make an equitable mortgage by its decree, but found one already existing, which it foreclosed.
Much has been said as to possible fraud. There is no scintilla of evidence tending to show fraud.
The defectively executed trust deed has been spoken of as a promise to execute a trust deed, or mortgage. It is more. It is an attempt to execute a legal trust deed, and the actual execution of an equitable mortgage.
• It is urged that an equitable mortgage does not take effect on after acquired property. Why not is not apparent. It would seem it should take effect, if at all, according to its terms, so far as these terms are lawful and valid.
Rehearing denied.
Groesbeck, C. J., and Blake, Dist. J., concur.