On Motion for Rehearing.
Appellant insists that the rule of decisions is this state that a mortgage lien may be extended by agreement between the parties to a promissory note secured thereby without the consent of a subsequent purchaser of the property covered by the lien, has no proper application in this ease. It is pointed out, as shown by the record, that Mrs. Jolly took a reconveyance of the' land from Holden immediately upon the execution of her deed to him, and that, since such reconveyance antedated the mortgage given by Holden, Mrs. Jolly was not a subsequent purchaser but a surety only, and therefore the statute of limitation as against her began immediately upon the maturity of the note given by Holden before any extension thereof. However, the facts show without controversy that appellant made the deed to Holden for the express purpose of enabling him to borrow money on the faith of the title thus conveyed, and without knowledge of any reconveyance to her, and therefore, upon the plainest principles of equity, she stands in the same relation as a subsequent purchaser of the property and is estopped from now taking a position the effect of which necessarily would place her in a position different from that which she intended the payee of the note to believe she occupied, and which would give her a better right by reason thereof. Mrs. Jolly was no more a personal surety on the note than she would have been if the property had been re-conveyed to her after Holden had executed the mortgage. The property was no more a mere surety for the debt by reason of its re-conveyance to her before the mortgage was given than it would have been if the mortgage had antedated the reconveyance.
Other questions presented in appellant’s motion for rehearing have been duly considered, and the motion is in all things overruled.
Appellee has also filed a motion for rehearing in which it is claimed that the judgment of the trial court should be so reformed as to allow a recovery of 6 per cent, interest rather than 5 per cent, interest, allowed by the trial court, upon $15,000 from April 28, 1924, to February 6, 1926, and thereby increase the recovery by the sum of $265. Appellee is in no position to make this claim, since it filed no motion in the trial court for that relief and did not in any manner call the trial judge’s attention to the point.'
Accordingly, appellee’s motion for rehearing is overruled.