On Motion for Rehearing.
In considering appellant’s motion for rehearing, we have again examined the record and reached the conclusion that our former order of affirmance should be set aside, and the case reversed and remanded for another trial. We find that we are in error in stating that appellant sought no personal judgment against Krenek. If in fact the various transactions in connection with the $1,100 note were merely for the purpose of collecting it, and through them Krenek actually realized the full amount of said note, same having been acquired by him as collateral after its maturity, he would hold the excess over and above the payment of the principal debt which it secured, and the sums of money he paid out in good faith in acquiring and collecting it, in trust for Moore. Moore would also have an equitable •lien.on said land to secure the payment of *92whatever sum Krenek was due, and would be entitled to a foreclosure of such lien. In seeking equity Moore must do equity by reimbursing Krenek in whatever sums it was necessary for Krenek to expend in acquiring, protecting, and collecting the collateral.
But appellant’s right of recovery in any event was subject to the defenses of limitation, estoppel, and innocent purchaser raised by the pleadings, the evidence, and requested to be submitted to the j.ury. The submission of these issues was refused by the trial court, and appellee • has properly cross-assigned error thereon. We are not prepared to hold that appellant was barred by limitation as a matter of law, but that issue was clearly raised. The same is true of the issue of innocent purchaser. Krenek sold said note to I-Iillsberg in January, 1918. Worlds then owned the land. Worlds conveyed the land to Hillsberg. This deed made no mention of the $1,100 note. Hillsberg re-conveyed to Worlds, who executed $1,200 in vendor’s lien notes as part purchase money, Krenek purchased these notes. The record does not disclose what Hillsberg ever did with the $1,100 note. It was introduced in evidence by appellant, showing indorsement to Hillsberg, without any indication whether same had ever been paid, extended, or discharged. Krenek testified that after he transferred it to Hillsberg he knew nothing more about it. It was by virtue of the vendor’s lien notes executed by Worlds to Hills-berg and by him transferred to Krenek that Krenek acquired said land. If he was an innocent purchaser of these notes, he was, of course, an innocent purchaser of the land. The pleadings and evidence clearly raised this issue also, and the court should have submitted it to the jury.
Por the reasons stated, our former order of affirmance is set aside, the judgment of the trial court is reversed, and the cause remanded for another trial.
Motion granted.