Thomas H. Morrow brought *307this action of trespass to try title, claiming 1,600 acres of land under a deed from S. E. Smith, of date August 8, 1870, and duly recorded January 23,1871. The defendants, Henry M. Morgan and others, claimed under a mortgage from S. E. Smith to Isaac McGary, of date February 8, 1861, duly recorded in May of that year, and as purchasers at a judicial sale, in March, 1874, under a decree of foreclosure, rendered in the District Court of Walker county December 2,1871, in a suit against the mortgagor, but to which Morrow was not a party.
The cause was tried without a jury, resulting in a judgment in favor of defendants, which judgment, however, expresses that it is not to prejudice the ultimate rights of the plaintiff. Embodied in the judgment, we find an opinion of the presiding judge, holding, in substance, that Morrow’s title was not affected by a decree of" foreclosure to which he was not a party, but that the purchasers at the foreclosure sale were subrogated to the rights of the original mortgagee, and that, under a clause in the mortgage, one of those rights was to the possession of the mortgaged property after January 1, 1863. The court thus deduced the conclusion that the defendants were lawfully in possession, and that their possession could not be disturbed until the purchase-money paid by them had been refunded, and the respective equities of the parties adjusted.
The mortgage, which is thus construed, shows that it was given to secure a large indebtedness of the firm of J. C. & S. E. Smith to McGary, then past due, and, in consideration of the agreement of McGary, to extend the time of payment to January 1,1863. The property mortgaged was a league and labor of land, (less 1107 acres sold to Dr. J. H. Starr,) embracing the land sued for, and a brick store-house and lot, in the town of Huntsville, described as then occupied by Smith, Walker & Co. The mortgage is in the ordinary form, except the concluding clause, as follows: “ The said McGary to have and to hold the hereby granted premises, to him, his *308heirs and assigns forever, but upon the following conditions: That if said note of J. C. & S. R. Smith be fully paid off and discharged on or by the 1st day of January, 1868, then this .deed of mortgage shall be void, and said McGary shall re-convey said premises back to me; otherwise to remain in full force and effect; and until the 1st day of January, 1863, I -am to retain the possession and use of said lands and houses free from rent. Witness,” &c.
The opinion of the court below holds, that it is to be implied from this stipulation that the mortgagee was entitled to possession after January 1, 1863. We do not so construe the mortgage. The intention of the parties will, we think, be more -nearly carried out by inferring that the grantor either misconceived or doubted the legal effect of the mortgage on the title, and the right of possession; and, by way of precaution, sought to protect himself by stipulating for a re-conveyance on payment of the debt, and also for undisturbed possession until the expiration of the extension, leaving the right of possession after that time to be regulated by the law. The provision for a reconveyance was unnecessary. (4 Kent’s Comm., 193.) The stipulation for possession was also unnecessary, being^but the expression of that which the law implies, in the absence of a stipulation to the contrary. (Duty v. Graham, 12 Tex., 427; Mann v. Falcon, 25 Tex., 275.)
The rule of construction, that “ the expression of a clause which the law implies works nothing,” leads to the conclusion that this provision may be treated as surplusage. (Broom’s Leg. Maxims, 519; 2 Pars, on Cont., 3d edition, 28.) The maxim, that “ the express mention of one thing implies the exclusion of another,” is ordinarily used to control, limit, or restrain, the otherwise implied effect of an instrument, 'and not to “annex incidents to written contracts in matters with respect to which they are silent.” (Broom’s Maxims, 505, 513.) It is said, that the general ground of a legal implication is that the parties to the contract would have expressed that which the law implies, had they thought of it, *309or had they not supposed it was unnecessary to speak of it because the law provided for it. (2 Pars, on Cont., 27.) We are unable to see, from the provisions of the mortgage, that the parties in fact designed to regulate by contract the possession of the mortgaged property after the maturity of the debt, but left so important a part of their contract to uncertain implication. The evidence does not show that possession was taken or claimed by the mortgagee, but tends to show that the right of the mortgagor to possession remained unchallenged up to the foreclosure sale. In our opinion, there is nothing on the face of the mortgage, or in the evidence, justifying the conclusion that the right of possession was not in the plaintiff.
The defendants may, however, on filing proper pleadings, in the nature of a cross-bill, be subrogated to the rights of the mortgagee, to the extent of the purchase-money paid at the foreclosure sale, and may thus place it in the power of the court to compel the plaintiff to adjust their equitable claims on the land.
It is not deemed necessary to pass upon other questions presented. The error in the construction of the mortgage is fatal to the judgment, and on another trial the same questions will scarcely arise, as the issues will probably be changed.
The judgment is reversed and the cause remanded.
Reversed and remanded.