On Motion for Rehearing
In our former opinion we found that at the time appellants’ father conveyed the land here involved to appellee, he owned the full title to an undivided half interest in said land, and held the legal title to the other undivided half interest in trust for appellants. We held that whether appellee had constructive knowledge of appellants’ interest in the land when he purchased it was a question of fact to be presented to the jury under proper instruction, and reversed the judgment based upon the verdict instructed in his favor.
Appellee insists, however, that he has succeeded by subrogation to the rights of the Federal Land Bank in and to said land, and that since we have held that the Land Bank owned the superior title to the land as an innocent purchaser for value to secure the payment of a note then amounting to $584 (which appellee has paid off), we should hold that appellee was, as a matter of law, an innocent purchaser for value. Since the Federal Land Bank owned the superior title to the land, as security to enforce the payment of the note amounting to $584 at the time appellee purchased the land, it is doubtless true that appellee had the right to pay off said note and sue appellants for contribution to the extent of their proportionate interest in the land, namely, one half thereof. It is further doubtless true that appellee would be entitled to bring suit to be subrogated to the rights of the Land Bank in the superior title to enforce such contribution. But it does not appear that appellee has ever established by judicial proceedings his right of subrogation.
*246“To be available, subrogation must be pleaded by the person claiming it. The facts upon which the claim for subrogation is based should be alleged, and the claimant should ask for such relief in his pleadings.” 39 Tex.Jur. 803, 804. The pleadings of appellee in this case were limited to an answer to appellants’ action in trespass to try title, and said answer contained only a general denial, a plea of not guilty, and pled various statutes of limitation. Since appellee’s pleading could not form the basis for the establishment of subrogation transferring the superior title to appellee, appellee can not claim to be an innocent purchaser for value of the superior title as the successor of the Land Bank. Indeed, had appel-lee asserted such right in his pleadings, the probabilities are that appellants would have promptly contributed their share of the note, as the land is now oil-producing.
Appellee seems to entertain the opinion that by paying off the note he became thereby ipso facto subrogated to the rights of the Land Bank. It is more correct to say that by''paying off said note appellee acquired the right to the remedy of subrogation, that is, an equity which entitled him to go to a court of equity and bring suit to be subrogated to the Land Bank’s rights. “By paying the debt of another person, the payer does not ipso fac-to become subrogated to the rights of the creditor; he acquires only a right to sub-rogation, and this right must be actively asserted before the substitution or equitable assignment can actually take place. For the right of subrogation is not a substantive, tangible thing of such a nature that it can be seized and held independently of a judicial proceeding; it is a right of action only- — that is, it must be established by a judicial proceeding.” 39 Tex. Jur. 802, 803. Again: “By subrogation, a court of equity, for the purpose of doing exact justice between the parties in a given transaction, places one of them, to whom a legal right does not belong, in the position of a party to whom the right does belong.” Id. 755. Failure of a party to bring suit to establish subrogation for two years will ordinarily subject his right to the two year statute of limitations. Darrow v. Summerville, 93 Tex. 92, 53 S.W. 680, 77 Am.St.Rep. 833. This shows that the right of subrogation is a mere equity, as distinguished from an equitable estate. Being a mere equity or executory right (a right to a remedy in a court of equity), it can mature into a vested or executed: right only by a decree of court. See Lang v. Shell Pet. Co., Tex.Civ.App., 141 S.W.2d 667.
The evidence in this case strongly tended to prove an estoppel against appellant, H. S. Downing. But appellee did not plead it. “In order that it may be relied on, the defense of estoppel must be specially pleaded; a contention that a party is estopped will not be considered if the issue has not been presented by the pleadings, and evidence to show estoppel will be excluded.” 17 Tex.Jur. 146.
Appellee’s motion for rehearing is overruled.
Refused.
MONTEITH, C. J., not sitting.