A mortgagee out of possession when the mortgaged property is levied upon is not entitled to the remedy provided by the trial of right of property statute referred to in the statement above, unless at the time of the levy he has a right to immediate possession of the property. Garrity v. Thompson, 64 Tex. 597; Willis v. Satterfield, 85 Tex. 301,20 S.W. 155; State Exch. Bank v. Smith (Tex.Civ.App.) 166 S.W. 666. It conclusively appeared appellee did not have possession of the lumber at the time it was levied upon, and appellants insist it did not appear he had a right to such possession at that time. It will be seen, on referring to the statement above, that Scroggins agreed to deliver the mortgaged property to appellee "on or before the 1st day of October, A.D.1926, or whenever demanded," and authorized appellee to seize and sell the property if he failed to pay the indebtedness on or before the time it became due, to wit, said October 1, 1926. It will be noted a right to seize and sell the property before October 1, 1926, was not conferred upon appellee. Therefore the question is, Did appellee at the time of the levy, to wit, July 3, 1926, have a right to immediate possession of the mortgaged property by force of Scroggins' undertaking to deliver same to him "whenever demanded"? We think not. Certainly he was not entitled to such possession until he demanded it, and it was not pretended in the testimony that he made such a demand before appellants' writ was levied on the lumber. 13 C.J. 660; Rodger v. Toilettes Co., 37 Misc.Rep. 779, 76 N.Y.S. 940; Newton Co. v. Ellis (Tex.Civ.App.) 285 S.W. 691.
The conclusion reached requires a reversal of the judgment, without reference to whether the mortgage, so far as it was on the lumber, was in contravention of article 4000, R.S. 1925, referred to in the statement above, or not; and the contention as to that phase of the case will not be determined.
Reversing the judgment of the trial court, judgment will be rendered here that appellants have and recover of appellee and the sureties on his claim bond $200, the value of the lumber levied upon, and interest on that sum from August 10, 1926, the date of said bond. Articles 7420, 7423, R.S. 1925.