
    Ayres, Adm’r, v. Cayce and others.
    Where a judicial sale under our former laws stipulated for a mortgage, and in ease of failure to pay for a summary order of seizure and sale on application to the primary judge, such order of seizure and sale, when obtained, merged the mortgage; and this order should be made the foundation of subsequent proceedings to enforce the lien.
    Where suit was brought in October, L81S, to foreclose a mortgage dated January, 1834; and an amendment was filed in May, 1831, settingup a decree obtained before a primary judge in 1835, for tho seizure and sale of the mortgaged property, the court said, ‘-If we are to regard “tliis decree as of any consequence it will not relate back to the filing of the original petition, but must bo taken as if tho amendment by which it was set up was tho beginning “of the suit, it would bo barred by the limitation often years. More than ten years had “expired after tho passage of the act of limitations of the 5th of February, 1841, before the “making of the amendment.”
    The 8th section of tho act of limitations of the 5th of February, 1841, (Hart. Dig., art. 2384,) included judgments and decrees lor tne emoreement of liens.
    
      Quered Where a mortgage embraces several tracts, and the mortgagee sues to foreclose against one only which has been subsequently sold.
    Appeal from Brazoria. On the 20th day of October, ISIS, George Huff, administrator of Samuel Sawyer, deceased, liled his petition in the District Court of Brazoria county against TMbmas Cayce, Thomas IT. McKinney and Samuel M. Williams, in which petition it was alleged, that on the Sth day of January, 1S34, as administrator, at public salo he sold in the town of Brazoria, to Tilomas Cayce, two tracts of land lying on the San Bernard river, one tract known as the Teel tract, containing- one league, and the other below the Teel tract, containing one-half league, being the upper half of league ÍTo. 1$, granted to Charles Garrett; that the said tracts of land wore sold for the sum of two thousand one hundred and thirty-live dollars,- for which said sum said Thomas Cayce executed his note with Warren D. C. Hall and Augustus Williams, payable 1st January, 1830; that said note being unpaid petitioner sued, and recovered a judgment on the 22d day of October, 1830, in the District Court of Brazoria against Cayce, Hall and Williams, for the amount of said noto and interest from the time when due and costs, which judgment yet remained unpaid; that on the 10th day of January, 3834, said Cayce executed and delivered to petitioner the instrument marked (A) which is made part of the petition; Thomas 1<\ McKinney and Samuel M. Williams, claimed to have purchased said half league of land so sold to Cayce; that if such purchase was made, it was with full notice of the lien then created by said instrument A; that Cayce is a citizen of Brazoria county, and McKinney and Williams ox Galveston county; and petitioner prayed that said half league of land mig-lit l>e decreed to 5c sold for tlie satisfaction of petitioner’s claim, and for otlier relief, &o.
    Exhibit A purported to be a mortgage executed before an alcalde of the jurisdiction of Brazoria, in which there' was an acknowledgment of tlie purchase of the two l roots of land mentioned, the amount of the purchase-money, the execution of the note with surety; and it is agreed that said tracts of land should be and remain mortgaged to secure the payment of said note; and upon default that, it should only be necessary to apply to the proper authority for an order to sell said tracts of land, &e.
    The defendant Cayce on tlie 0th day of November, 1848, demurred: and fop canse of demurrer, assigued,
    1st. Because a judgment has been rendered'against the defendant on the note described in tlie''petition.
    2d. Because said note was merged and extinguished by said judgment; and the pretended mortgage was thereby discharged, released, and annulled.
    3d. Because lie, defendant, is improperly "joined with otlier persons in this suit, between whom and this defendant there is no privity.
    4th. Because it is not shown what disposition has been made of the league of land described in tlie petition ; why it lias nod first been sold for the payment of tlie debt, nor who is tlie owner or claimant; and because the owner and claimant of said land is not made a party to this suit.
    Otlier pleas were interposed which it is unnecessary to notice, as no question arose upon them.
    Tlie defendant Samuel M. Williams demurs, and for cause of demurrer assigned in addition to those assigned by Cayce.
    No sufficient diligence is shown on the part of the petitioner to preserve Ilia pretended lieu.
    And he answered further, which is not necessary to be noticed.
    At the fail Term 1840, death of plaintiff suggested and sci. fa. ordered. At the fall Term 1830, David Ayres, administrator, &c., came into open court anti made himself a party. On the 5th day of December, 1S50, defendant, Thomas F. McKinney, filed his general demurrer (o the plaintiff's petition¿ and answered further, which it is not necessary to notice.
    On tlie 8th day of 'May, 1S51, the-plaintiff by leave of the court first had and obtained, amended his petition, and stated that on the 28th day of January, 1833, George Huff, administrator of Sitwyer, presented his petition to Silas Dinsmore, Judge, &c., which petition was marked B, and made part of the amendment, and on tlie 2d day of March, 1835, said Judge renderd a decree, a copy of which marked C, was annexed, and on the samo day by virtue of said decree, a writ of seizure and sale of the lands in said mortgage, in favor of said Huir, administrator, &c., against said cayce, was issued; which was placed in the hands of the sheriff, but never executed, in consequence of the difficulties between citizens of Texas and the government of Mexico; that on the 13th day of April, 1837, after due nptice and paj'ment demanded of said Cayee, another execution was issued in favor of said Huff, administrator, &c., against said Cayce, for the sale of said land; which was enjoined upon tlie petition, prayer, and affidavit of said Cayce by order of B? C. Franklin, Judge of the second judicial district, on the 2d day of May, 1837, as appears by the records of the court; -and that said original mortgage had been of file and record since the making thereof. And he prayed judgment that said land might be decreed to bo sold for the payment of said debt; that the defendants be foreclosed, &c.
    Exhibit B was a petition stating- the sale-of the land, the giving the note- and mortgage, the non-payment of the money, and asking- a sale — upon which tlie judge ordered a sale on sixty days’ notice.
    Oil the 9th day of May, 1851, defendant Cayee filed his general demurrer to the amended petition of plaintiff. On the 9th May, 1851, tlie defendants McKinney and Williams demurred, and for cause of demurrer assigned,
    1st. Tlie said plaintiff in his said petition sets out and shows no goo<3 ami sufficient subsisting lien or mortgage on the laud in the petition mentioned.
    2d. Tbe mortgage sued on has never been recorded in the county in which the land is situated.
    And they answered further, which is not necessary to notice.
    
      On the 30th May, 1831, the plaintiff filed another amendment by leave of the court, in which lie slated that tiie execution issued against Thomas Cayce. on the 13th day of April, 1837, was enjoined as set forth in the amen.led petition filed on the 8th day of May, 1831 : and the said injunction was perpetuated conditionally as appears from the records of this court.; and lie ;u.l aches a copy of the judgment thereupon, marked (D) as part of this amendment; that, on the 2d day of May, 1837, Jane Sawyer, widow of said Samuel Sawyer, deceased, filed her petition in which she claimed one-half of said land sold to said Cayce, and prayed that said sale be annulled; that said petition on motion of sai-l .Jane Sawyer was dismissed; that said claim was the sole ground alleged by said Cayce, in his petition, for the obtaining and perpetuating said injunction ; that said Huff and Cayce, by their attorneys of record, during the pendency of the suit made this agreement:
    ‘‘In the case of Thomas Cayee v. George Iluff, administrator of .Samuel “Sawyer, on bill of injunction, it is agreed between W. II. Jack ami John A. “Wharton, counsel for the respective parties, that the, injunction be made “perpetual, Iluff to pay costs. And in obtaining an order of seizure and sale “ the said Cayee waives all forms of law except sixty days’ notice of said sale; ” that the petitioner brought into court a release from" Jane Sawyer to said Onyce, which he prayed to ho considered a full satisfaction of the condition annexed to said judgment of perpetuation. Plaintiff further alleged the the title obtained by said Cayce for said land, contained a judicial mortgage; that the judgment against said Cayee, Hall and Williams is still unpaid and exe'uUions have issued from term to term to this time; that said Cayee and Hall have been insolvent many years; and said Williams departed this life in 1847; that tiie said original mortgage and said papers and records of said al-calde and primary courts, have been on fdc and record in the District Court of Brazoria county'since the-day of-, 1S3G ; that the conveyance to McKinney and Williams was made, if at all, on the 13th day of April, 1837.
    On the 10th May, 1851, the defendant Cayee demurred to the amended petition, and filed other pleas not necessary to be noticed.
    And on the same day the defendants McKinney and Williams demurred, and for cause of demurrer assigned,
    1st. The said plaintiff in his petition or by his amendments there to, shows no good and sufficient, valid, subsisting lieu upon the property in contest in I his suit.
    2<1. The lien of the mortgage set out in the plaintiff’s petition, was merged in the order of seizure made' by the primary judge in the said petition as amended set out.
    3d. The said plain! iff, by his own showing, has a decree of a competent tribunal foreclosing the mortgage now attempted to be foreclosed in this suit.
    4th. The said plaintiff’is barred by the statute of limitations.
    6th. The claim of said plaintiff is a stale demand. And said defendants further answered, which it is unnecessary to notice.
    On the 10th May, plaintiff further amended, and stated that George Huff lias departed tliis life, and David Ayres lias been appointed administrator de bonds non; lie said, also, he was willing and ready to give bond and security to said Thomas Cayee, against the claims of said jane Sawyer, and prayed the court to indicate in wlnit amount said bond shall be.
    On the same day defendants demurred, and adopted for cause of demurrer those causes of demurrer previously assigned, and on the same day the court sustained the demurrer to plaintiff’s original and amended petition, and dismissed his suit.
    
      jP. Me Great, for appellant.
    
      
      II. Ilngltes, for appellees.
    
      
       Note. — This statement of facts was prepared by R. Hughes for appellees, and was indorsed by Lipscomb, J., as follows: “ l have examined the record and find this to be a correct abstract “and wish it to bo prefixed to the opinion as a statement of the case.” — Rep.
    
   Lipscomb, J.

As the case was decided on demurrer all such matters of fact set up in the different answers and pleas as required the intervention of a jury-are no! presented for our consideration. We must look to the facts contained in (lie peíiíion, and the several amendments thereto, and determine whether the law arising- on them gives the plaintiff a right of action, and for a judgment of foreclosure of the mortgage sued on. We do not believe that it will he necessary (o examine more than two grounds assigned by the defendants in support of their demurrer. First, that the mortgage sued upon was merged in (he decree, or order, of the alcalde, or judge of the first instance, for the munieioaliiy of Brazoria. And secondly, the statute*of limitations.

Thai all the evidence of a right of action is merged in the judgment rendered in the suit upon such evidence of rig-lit is a principle so well established that it requires neither argument nor authority in its support. And such judgment is final and conclusive on all matters thereby adjudicated. If, then, the al-calde. or primary judge, had jurisdiction of the question of the sale under the mortgage upon default of payment of the money secured to be paid by it, the character of the mortgage had been absorbed by the order or decree of that tribunal; and it could no longer be made the foundation of a suit. As well might it be contended that a promissory note, after having been sued upon to judgment, could be made the foundation of an original action. So long- as the judgment upon the one or the other remains mireversed those evidences of right cannot be again put into litigation. It is res adjucliccda. The jurisdiction of t it*, primary court has not been questioned, and the presumption is in favor oí utu-a jurisdiction, not only from its having been exercised, but from the practice prevailing at that time, and the jurisdiction of the court not called into question. So far, then, as to the defendant. Cayee, the matter of the mortgage was final and conclusive.

Yet., it is not believed that this adjudication would prevent the plaintiff from instituí ing proceedings in the District Court for the of out and executing that decree. If, after this decree and before its execution other rights liad 'intervened, as in this case, by the property changing possession, and ilaving gone into the possession of other persons by purchase, proceedings might, be^liad against such persons for the fiui-pose of enforcing the previous lien. Tiie sale to them would be valid, incumbered only with the lien. In that case, however, it would seem that the order or decree of the primary court would form tiie basis of the proceedings for its execution; and that such proceedings to enforce the lien could not be founded on the mortgage ; because, the lien would arise from the decree of tiie primary judge, and not. on the mortgage, the latter having been merged in the former. And, in the proceedings, tiie mortgage should have been referred to, not as the foundation of tiie action, hut fertile purpose of showing what tiie decree of tiie primary court settled, and what rights liad been adjudicated.

But, suppose that it may he considered that the proceedings in tiie District Court, in on the injunction and tiie decree made therein, interposed a bur to fnrtlier proceedings to execute the decree of the primary court. So long as they remained unreversed or set aside they were conclusive aga'inst the plaintiff; because tiie jurisdiction of the District Court in rendering tiie decree on the injunction cannot be doubted. The decree so rendered may have been erroneous, but it was not a nullity.

If, however, by a liberal construction this suit is brought for the purpose of obtaining execution of the decree of the primary court, and no impediment is offered by the proceedings in the District Court on the injunction in 18IJ7; will it place, the plaintiffs in a more favorable position before tills courtt It will be borne in mind that the original petition made, no reference to the proceedings before, the judge of the primary court, nor the order and decree for seizure and sale,; and that it. was not until tiie amended petition of 1801 that it is set up in tiie plaintiff’s petition. If we are to regard this decree as of any ■consequence, it will not relate back to the filing oí the original petition, hut must he taken as if the amendment hy which it was set up was the beginning •of the suit. It would be barred by the limitation o£ ten years t.o bringing- a ■suit on a judgment. The decree was rendered in the primary court in January, 1835; and the amendment was not made until the 8th day of May, 1851. More than ten years had expired after tiie passage of the act of limitations of the 5th February, 1341, before the making of the amendment. (Art. 2378, Hart. Big.; Williams v. Raudon, Henderson v. Kissam.)

There is another aspect in which the statute of limitations interposes, as we believe, a conclusive bar to the plaintiff’s right of action. The first clause of the 8th section of the act above cited (Hart. Dig., art. 2384) is as follows, i. e., “That eacii and every claim for money, which lias deen'due for more than five ’“years and less than ten years, an action shall lie commenced thereon, within ■“one year from the passage of this act, and not thereafter.” Now, whether the original mortgage, or the decree of the primary judge, of January, 1835, is to he regarded as'tiie cause of action in this case, it is clear that it was of moro than five years’ standing, at the date of the passage of the act; and it was barred unless suit had been commenced within one year thereafter. Wo are well satisfied that this suit was on a claim for money, and within the meaning of the act. That the payment and collection of the money secured to be paid was the object of the suit will not admit of a doubt. This, perhaps, may he demonstrated Iw a reference to the analogy of other cases, when another case now before us, in which this position has been sustained by a very able argument of counsel, is decided.

There is another ground upon which the demurrer might, it would seem to me, be sustained although it was not specially assigned in its support; but it was pleaded. The mortgage sought to he enforced was on two tracts or parcels of land, one of a league and the other of a half league. The iilain-tiff seeks to enforce it against the half league, purchased by third persons, who had acquired rights to tiie same, from the plaintiff’s own showing, whether the lien should he sustained or not; and he has assigned no reason in his petition why (his half league in which others had acquired an interest, should be incumbered with the lien to the exemption of the other tract mortgaged, that may not have involved tiie rights of third persons. That a court of chancery will not permit a part of tiie mortgaged property that had been sold to he incumbered with the payment of the whole amount for which all of it had been mortgaged, is a well settled principle of equity j urisprudouce. (Pallen v. Agricultural Bank, Freein. Ch. It., 419; 8 Sm. & Marsh. R., 357.) The cases in which this principle has been acknowledged and enforced have been where the purchaser comes into equity to compel the party who holds a legal lien so to enforce his rights as not to injure others. I cannot perceive, however, that the application of the principle would lie less available, in a ease like this, in a proceeding to foreclose the mortgage .where the petitioner shows that a part of tiie laud has been sold, and makes the purchasers parties, and lie seeks to enforce the payment of the whole from the part so sold, and gives no good reason, and, in fact, offers none, wiiy he had not sought, satisfaction of his lien from the balance of the property, oii which, perhaps, there were no equities to be protected. It seems that to rebut tiie equity of the purchaser when he brings him into court, in a suit in which he seeks satisfaction of his lieu from the part sold, he should have by an allegation shown why lie liad so resorted to that part of the property alone. Had he obtained a decree against the whole of the land included in the mortgage, and endeavored to, seil that particular part sold, when tiie other, double the quantity, had not been sold by the mortgagor, there can be no doubt he would have been restrained from so doing until there had been a sale of the other land. I think, therefore, that the'petition is bad in substance in not asking a foreclosure for the whole of the land, or alleging some good reason for failing to do so.

This point is not, however, regarded as essential to a decision of the case us. and it is, therefore, not to be considered as decided. It would not have been noticed at all, but for tlie fact that we have so mans'- cases of trusts and liens comino- before us tiiat it is important that every question relating to them should be well considered. Upou the other grounds we believe the judgment must be affirmed.

Judgment affirmed  