ON MOTION EOR REHEARING.
We think it proper to discuss certain matters referred to in this motion. It is contended that appellants’ right under Russek having accrued prior to the sale of the vendor’s lien notes to Kessler, the sale and the agreement connected therewith did not affect appellants, they not being parties to the transaction. We have given our reasons for concluding that the previous understanding between Russek, Mrs. Russek, and Kessler, her agent, concerning the application of the notes to the several mortgage liens, was not a completed appropriation of the notes for that purpose. This being so, and there being nothing to show that appellants were led to believe, in dealing with the property of Frank Russek, that the notes had been so appropriated, there was nothing in the way of Russek and Mrs. Russek disposing of them as they pleased.
It is also contended that the court erred in admitting in evidence the agreement of June 26, 1893, whereby the notes were sold to Kessler for $25,000, and providing for the application of this sum to the Thornton and Malone mortgages first and then to the mortgage in question, for the reason that appellants were not parties to such agreement and were not bound thereby. It should be borne in mind that the land in question had been partitioned to Frank Russek before appellants’ rights arose. It was as to the mortgagee subject to the entire mortgage, but as between Frank Russek and Rosina Russek, it was subject to one-half thereof. The persons to whom parts of the mortgaged land had been sold and warranted were entitled to have what remained unsold subjected first to the mortgage. If Frank Russek and Rosina Russek had frittered away the vendor’s lien notes, the land in which appellants have an interest would have been liable to be sold to satisfy the entire mortgage before any of the property that they had sold off. In this view of the case we can not see how appellants were prejudiced by an agreement which was beneficial to them, in providing for a material payment on the mortgage. We think the agreement was admissible for another reason: it was the instrument that evidenced and fixed the extent of plaintiffs’ right of subrogation in reference to the mortgage debt paid off by them.
We think the motion should be overruled.
Overruled.
Writ of error refused.