(dissenting).
In my opinion the decision in Carlton v. Newton, Tex.Civ.App., 44 S.W.2d 475, no wr. hist., indicates a simple and correct solution to the problem before us in this case. The Court merely complicates matters by saying that a party may sue in one county to remove a cloud from title when *956that cloud happens to be an asserted right to foreclose a mortgage, and at the same time asserts that the mortgagee may bring suit in another county and name as parties thereto all those who claim adversely to the holder of the mortgage. I think petitioners’ motion for rehearing should be granted, that this Court should assume jurisdiction in this case and reverse the judgment of the Court of Civil Appeals and order the cause transferred to one of the District Courts of Bexar County for trial.
The Legislature has adopted certain exceptions to the general venue rule that a defendant should be sued in the county of his residence, primarily because of considerations of convenience. Exception 14 of Article 1995, Vernon’s Ann.Tex.Stats., being mandatory, we may conclude that the Legislature considered it important from the standpoint of litigants that land suits be tried in the county where the records relating to such lands were accessible and where witnesses familiar with the lands were readily available. The petitioners by proper plea asserted in the trial court their privilege to have this suit tried in the county where the land was situated. The respondent as plaintiff in the trial court was thereupon required “to assume the burden of pleading and proving that he has a statutory right to maintain his suit in the county where he has filed the same.” Pena v. Sling, 135 Tex. 200, 140 S.W.2d 441, 128 A.L.R. 1223.
This Court has held that the respondent has met this burden, i. e., that the present action as made by the petition is not a suit “for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land.” I cannot agree with this conclusion. If we give any weight to substance and to convenience of trial, the present suit must be considered as one to remove an incum-brance upon the title to land. Insofar as the venue question is concerned, the case as made by the petition is as simple as A, B, C. A executes a mortgage to B. Later through fraud A induces B to release the mortgage. A then conveys the land to C. B then sues both A and C to subject the land to his mortgage. Can it be said that A’s deed to C is not an incumbrance upon the title to land insofar as B’s rights are concerned? Let us take this situation: B conveys land to A who afterwards conveys to C. B then sues A and C contending that his execution of the conveyance to A was induced by fraud. Certainly here,, the deed from A to C is an incumbrance upon the title asserted by B. This then raises the further question: In stcbstance,. is there any difference between the two situations mentioned?
Then we might consider this example which is not uncommon in land litigation. More than A, B and C are involved. B secures a deed apparently executed by A. B conveys to C and the property then passes by mesne conveyances to M. However, shortly after A’s purported conveyance to B, A executes a deed to N and the property passes by mesne conveyances to Y who executes a mortgage to Z. Z brings suit to foreclose this mortgage naming all the letters of the alphabet from B to M as defendants upon the theory that the purported conveyance from A to B is a forgery. Can it be said that simply because Z’s interest in the property is that of a mortgagee, the suit is not one for the removal' of an incumbrance to the title to land? Would it have made a substantial difference if Y, the mortgagor, had brought the suit to clear his title of the claims of B to M inclusive? In essence are not the actions the same whether brought by the mortgagor or mortgagee?
I would hold that whenever a mortgagee, asserting a lien on land, seeks to subject the apparent interest of others (not parties to the mortgage, and not admittedly holding subj ect to the mortgage) to the lien of the mortgage by setting aside releases relating to the mortgage or deeds apparently affecting the land covered by the *957mortgage, his suit is one for the removal of an incumbrance to the title to land and controlled by Exception 14. I accordingly, dissent.
SMITH and GREENHILL, JJ., join in this dissent.