On Application for Leave to File Appellants’ Third Motion for Rehearing.
There is no independent and distinct allegation or affirmative pleading or prayer demanding, as a condition precedent to ap-pellee’s recovery, that the sum of $5,000 and' the interest loaned to appellant or any part thereof remaining on hand be brought into court, or that the decree awarding judgment of cancellation of the instruments be made dependent upon the payment of such sum of money.
To illustrate, where complaint is made and demand for relief is sought (see, as presented by appellant in the third, fourth, tenth, eleventh, thirteenth, and other propositions of law), it is either to foreclose the alleged lien securing the $5,000 note, or to foreclose the lien on the Jones notes and satisfy the $5,000 out of the proceeds of the foreclosed Jones notes, or deposit in court the $200 on hand. This, whole subject is covered by the opinion of this court in Wisdom v. Peck, 220 S. W. 213, and especially in the opinion upon the motion for rehearing in that case that largely controls the disposition of this case. The court adjudged to appellant $3,000 with 6 per cent, interest from November 4, 1918, and awarded execution in favor of J. J. Donaldson, for the collection of the same, against D. A. Meyer. That judgment was affirmed.
The motion is overruled.