Brewster v. Davis

• Citation: 56 Tex. 478
• Decision Date: 14 March 1882
• Docket Number: Case No. 1454.
• Parties: ROBERT BREWSTER ET AL. v. GEORGIA A. DAVIS.
• Court: Supreme Court of Texas

56 Tex. 478

ROBERT BREWSTER ET AL.

v.GEORGIA A. DAVIS.

Case No. 1454.

Supreme Court of Texas.

Mar. 14, 1882.

APPEAL from Harris. Tried below before the Hon. James Masterson.

Baker & Botts, for appellants.

Jones & Garnett, for appellee.

I. A deed absolute on its face may be shown by parol testimony to be a mortgage, and this may be proven just as any other fact can be proven, subject only to the one restriction that the testimony of one witness to declarations of the alleged trustee will not be sufficient unless corroborated. Stampers v. Johnson, 3 Tex., 1;Carter v. Carter, 5 Tex., 100;Mead v. Randolph, 8 Tex., 196;Mann v. Falcon, 25 Tex., 275.

II. The grantees in the deed having expended nothing, and having incurred no liability for the deed or upon the faith of it, it does not matter how they understood it. If Mrs. Davis understood and executed it as a mortgage, and for no other purpose, then it can have no standing as to her except as a mortgage, the property being her homestead and not subject to a sale except by her express act, having that end and purpose directly in view. Const. 1876, art. 16, sec. 50; R. S., art. 560; Hohorst v. Flatto, decided February 14, 1882, by supreme court.

GOULD, CHIEF JUSTICE.

Ordinarily when parol evidence is admitted to show that a deed, absolute on its face, was intended by the parties as a mortgage, it is done with the view of its enforcement as a mortgage. On the ground that equity forbids the use of the deed as a conveyance where the parties only designed it to operate as a security, parol evidence is allowed to show that such was the intention of the parties. The appeal is for equitable relief, and is accompanied with the proffer to do what equity requires, by submitting to the enforcement of the instrument as a mortgage. In such cases the proof must be “clear, satisfactory and convincing.” Jones on Mortgages, vol. 1, sec. 335 and authorities there cited. See also Grooms v. Rust, 27 Tex., 234 and cases there cited. But here the attempt is to show by parol that a deed absolute on its face was intended merely as a security, the purpose being not to allow it to operate as intended, but to absolutely cancel and annul the instrument on the ground that by the constitution and laws of this state any mortgage or lien on the homestead is invalid. Doubtless the illegality of this contract may be shown to defeat it. If in truth the real transaction between the parties was not a sale, but was merely to operate as a security or lien on the homestead for the reimbursement of the sureties on the official bond of Davis for such amount as they might be compelled to pay to satisfy recoveries against them as such sureties, then these facts being established by “clear and strong proof,” the illegality of the contract would be apparent. 1 Jones on Mortg., sec. 622 and references.

But whether the parol evidence be admitted on equitable grounds, looking to the enforcement of the instrument as a mortgage, or on grounds of public policy, looking to the cancellation of the instrument as illegal, in neither case is the fact that the “grantee understood the transaction to be a mortgage” sufficient to prove it to be so. 1 Jones on Mortg., sec. 335 and references. There is no evidence whatever tending to show that if Mrs. Davis was deceived into executing the instrument by representations that it should operate as a mortgage, the grantees were parties to or had any knowledge of such deception. She testifies that she understood and intended said deed only as a mortgage, but testifies also that the only conversation she had with any one...