Beale v. Ryan
| Citation | 40 Tex. 399 |
| Parties | MARY F. BEALE v. J. R. RYAN. |
| Decision Date | 01 January 1874 |
| Court | Supreme Court of Texas |
1. An instrument purporting to convey land which, upon its face, discloses that it was intended as a security that title should be made to another tract, and as indemnity against a lien on such other tract, is a mortgage, though it may recite that upon failure to discharge the lien the instrument shall “remain in full force and virtue as a deed.”
2. On a trial involving title to land, when the question is presented whether an instrument in evidence is a deed or mortgage, it is the duty of the court to construe the instrument in charging the jury, and instruct them as to its legal effect.
3. A plea in abatement will not be considered on appeal or error unless the attention of the court below was called to it and a ruling thereon obtained.
4. When a party against whom no liability is alleged, nor relief sought, is made a party defendant for purposes of jurisdiction, and a recovery is had against his co-defendants, the costs incurred by reason of such misjoinder should be adjudged against the plaintiff.
5. See opinion for facts upon which it was held error not to charge the jury on the question of homestead.
6. It is the duty of a party prosecuting an appeal, and of the district clerk who prepares the transcript, to see that the same is methodically arranged and properly indexed.
ERROR from Lamar. Tried below before the Hon. R. H. Taylor.
Hancock, West & North, for plaintiff in error, contended--
1. That there was error in the omission of the court to construe the instrument relied on, citing Lewis v. San Antonio, 9 Tex. 71, and authorities there cited; Swift v. Herrera, 9 Tex. 263;Wright v. Thompson, 14 Tex. 563.
2. That the instrument which it was claimed by plaintiff below was evidence of his title, was but a mortgage, citing Ruffien v. Womack, 30 Tex. 332;Boatright v. Peck, 33 Tex. 75.
3. And that instrument being a mortgage on the homestead, acknowledged by the wife, to secure a debt which did not exist when her acknowledgment was taken, was an absolute nullity, citing Berry v. Donley, 26 Tex. 745;Clayton v. Frazier, 33 Tex. 100;Young v. Van Benthuysen, 30 Tex. 770;Eckhardt v. Schlecht, 29 Tex. 133; Nichols v. Gordon, 25 Tex. S. 113; Green v. Chandler, 25 Tex. 157;Roy v. Bremond, 22 Tex. 627;Cross v. Everts, 28 Tex. 532.
4. That a void deed from a married woman can give no color of title, and a party acting under such a deed is a mere trespasser, who can only rely upon his naked possession.
V. W. Hale, for defendant in error. If the deed is a conditional deed, then, at least, so far as the rights of plaintiff in error go--and she is the only party now litigating--the charge of the court is the law of the case.
This instrument cannot be construed to be a mortgage, because the relation of debtor and creditor did not exist between the grantors, Beale and Beale, and J. M. Alexander, but the proof shows that Alexander swapped Beale and wife a tract of land on Indian creek, in Collin county, for four hundred acres of the Drewry Auglin headright; but, upon discovering that McReynolds held a mortgage upon it, as well as upon the one hundred and ninety-six acre tract in controversy, it was agreed that in the event Beale and wife should fail to satisfy the mortgage debt, then and in that event this same deed shall be a full and complete deed, in fee simple, for the land in controversy.
This instrument shows clearly upon its face that the intention of all the parties was to make it absolute on the happening of the event of a failure of plaintiff in error and her husband to remove the incumbrance created by McReynolds' mortgage, and this was a duty devolving upon the plaintiff in error.
The fact of this one hundred and ninety-six acres being the homestead of Beale and wife, shows clearly that it was not intended to be a mortgage, because McReynolds held a mortgage on both tracts; but it was well understood that the homestead tract of one hundred and ninety-six acres could not be subjected to the payment of that debt; hence the conditional deed, instead of another mortgage--a deed in which the wife joined--not a deed to secure the payment of an antecedent debt, but a deed (conditional) the consideration for which Alexander transferred to Beale and wife three hundred and twenty acres of land on Indian creek.
This whole transaction shows that it was understood and agreed that Beale and wife might withdraw this one hundred and ninety-six acre tract, so to speak, from the operation of McReynolds' mortgage, and sell and dispose of it conditionally, which they did in the manner pointed out by the law. See 1 Hill. Mort. 95 to 107, inclusive.
The difference between a mortgage and a conditional sale is clearly recognized by the civil law. 2 Story, Eq. sec. 1019; see also Thompson v. Chumney, 8 Tex. 389 et seq.
It is true that a deed absolute on its face may be shown to be in fact only a mortgage, but this is only where the relation of debtor and creditor exists. Baxter v. Dean, 24 Tex. 20.
Neither can it be considered an alternative contract, because the grantee had no power to elect which of the two tracts of land he would take; nor had the grantor the right to compel the grantee to take the tract of one hundred and ninety-six acres, but the right of the grantee to that tract depended entirely upon a failure of Beale and wife to relieve the four hundred acre tract from the incumbrance of McReynold's mortgage, which is not at all pretended they did. Sage v. Hazard, 6 Barb. 179, Supreme Court N. Y.; Eno v. Woodworth, 4 N. Y. Comst. 249, Court of Appeals, 1850.
The defendant in error brought suit in the district court of Lamar county against J. E. Combs, the administrator of J. M. Alexander, and C. Beale and Mary F. Beale, to recover a tract of one hundred and ninety-six acres of land, which he stated in his petition was the homestead of Beale and wife at the time they signed the paper called by him a conditional deed, and under which, as assignee, he claims title to the land in controversy.
The principal facts in the case are briefly as follows:
C. Beale, on the sixth day of March, 1862, signed an agreement, or obligation, which was acknowledged by Beale on the same day, and by his wife on the sixth of August, 1862.
That paper recited that Beale and wife had sold to James M. Alexander four hundred acres of land, in consideration of the sum of two thousand five hundred dollars to them paid. That one McReynolds held a lien on the four hundred acres, and also on one hundred and ninety-six acres, a part of the same tract, to secure the payment to him (McReynolds) of a debt.
“And now, to secure to said Alexander a title to said four hundred acres of land, and to indemnify him in case he should incur any loss by reason of said lien, I hereby sell and transfer to the said Alexander the last mentioned tract of one hundred and ninety-six acres, on which our dwelling now stands; and it is expressly understood that should I pay off and discharge the lien that said McReynolds now holds on said tract of land, and save the said Alexander harmless from any loss, then we are to convey to him by general warranty deed the first named tract of four hundred acres, and this writing is to be null and void and of no effect, but otherwise to remain in full force and virtue as a deed for said two tracts herein described.
It is further agreed, on the part of the said Beale and wife, that he shall pay off and discharge said lien by the first day of August, 1862, and then make a title to said four hundred acres of land.”
The lien or mortgage of McReynolds was on the date of the instrument above quoted in suit, and a judgment rendered in his favor on the twenty-second of August, 1862, which judgment directed a sale of the four hundred acre tract, to satisfy the judgment, reserving out of the judgment the homestead tract, and appointing commissioners to lay it off for Beale and wife, which was accordingly done, and their action approved and confirmed by the district court.
On the twenty-eighth of August, 1862, and six days after the judgment of foreclosure on the four hundred acre tract, and the exempting and setting aside of the homestead, the defendant in error obtained an assignment of the obligation or agreement of Beale and wife to Alexander, and brought, as already stated, suit to recover the homestead tract.
The pleadings are unnecessarily multiplied, and the order in which they are copied by the district clerk not creditable either to his attention or capacity in the performance of some of his plainest duties. Portions of the evidence, made so by the statement of facts, appear in the transcript in the most unlooked for positions--these papers having no reference to the cause, save as facts in evidence, and placed where least expected, with no reference in the index to designate their location. The pleas in abatement filed on behalf of Beale and...
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