Carter v. Carter

• Decision Date: 31 December 1849
• Citation: Carter v. Carter, 5 Tex. 93 (Tex. 1849)
• Parties: CARTER v. CARTER.
• Court: Texas Supreme Court

5 Tex. 93

CARTER

v.CARTER.

Supreme Court of Texas.

December Term, 1849.

We have repeatedly decided that where exceptions are filed but not subsequently noticed in the proceedings below, they will be deemed to have been waived by the party filing them. (Note 12.)

Although it is usual and perhaps necessary, under the English rules of pleading, expressly to charge a fraudulent intent where the fraud is alleged to consist in intention, and the quo animo is the gist of the inquiry, because in that case fraud is a question of fact, yet we are not aware of any rule or principle in our law which requires the fraudulent intent to be expressly averred where it is a conclusion to be drawn from the facts specially alleged in the petition, and where the existence of those facts and not the fraudulent intent is the gist of the inquiry and the foundation of the rights asserted in the action. (Note 13.)

A deed absolute on its face will be valid and effectual as a mortgage as between the parties, if it was intended by them to be merely a security for a debt. The character of the conveyance will be determined by the clear and certain intention of the parties; and parol evidence is admissible to show what their intention really was. (Note 14.)

If the question of mortgage or not depends upon written instruments, it is for the court to decide; but if upon written and parol evidence, it is within the province of the jury.

The province of the jury in the trial of all causes in equity (Const., art. 4, sec. 16,) is the same as in the trial of causes at law; if the evidence be admissible, as conducing in any degree to maintain the issue, whether it shall satisfy the jury of the truth of the fact which it conduces to prove is a question which must of necessity belong to them to determine; and the court, especially an appellate court, will not set aside their verdict merely because the evidence might not be deemed by a chancellor sufficient proof of the disputed fact. (Note 15.)

The Supreme Court will not set aside a verdict and grant a new trial merely because they might, upon an examination of the evidence, have arrived at a result different from that attained by the jury; nor merely because it may appear to them to be founded upon slight evidence. (Note 16.)

Error from Fayette. The defendant in error sued the plaintiff in error, alleging in substance that being greatly in want of money, he applied to the defendant (the plaintiff in error) for four hundred dollars upon the mortgage of a negro woman and her child, worth eight hundred dollars; that the defendant agreed to let him have the four hundred dollars, upon condition that he (the plaintiff) would execute to the defendant a bill of sale of the negroes, at the same time agreeing that the plaintiff should have the right to redeem them at any time, by returning him the amount of money advanced; that he accepted the proposition, executed the bill of sale, and received the money, but with the express understanding and agreement that he was to have the privilege of redeeming the negroes at any time by the payment of the money; that afterwards he heard that the defendant was about to sell the negroes, and thus to put it out of his power to redeem them; that thereupon he went to the defendant and urged his right of redemption; that the defendant admitted his right, but said that unless he would redeem them in one hour, he should not afterwards do so, and that he would sell them; that he thereupon procured the money, and in less than one hour tendered the amount to the defendant and demanded restitution of the negroes, according to the terms of his contract with the defendant, but that the defendant refused to make restitution, or to permit the plaintiff to redeem the negroes. The plaintiff further alleged that the bill of sale, though absolute on its face, was in fact given for the sole purpose of securing to the defendant the payment of the four hundred dollars loaned the plaintiff; that the defendant had enjoyed the possession and services of the negroes, of the value of twelve dollars per month; concluding with a prayer for the redemption of the negroes, or the excess of their value above the four hundred dollars advanced in the first instance.

The defendant excepted to the petition and answered; denying the allegation of an agreement for the redemption of the negroes; averring that there was no other agreement than that evidenced by the bill of sale, which he exhibited as a part of his answer; and further averring that there was no consideration moving from the plaintiff to support a promise to restore the negroes; and concluding with a general denial.

It appeared from the statement of facts that at the trial one witness testified that at about the time of the date of the bill of sale he heard a conversation between the plaintiff and defendant; the former was offering to sell some negroes; the defendant said he would give four hundred dollars for them, which the plaintiff said was not enough; the defendant said that if they should trade, the plaintiff could have the negroes back at any time by paying the purchase-money and interest. The parties then went away together. Another witness heard N. W. Faison say to the defendant, “I thought you were to let him (the plaintiff) redeem those negroes again;” to which the defendant replied that he would let him have them back if he (the plaintiff) would pay him the purchase-money, but no one else should have them at that price; that the negroes were making him twelve dollars per month, and costing him nothing. N. W. Faison also testified to the same conversation; and also that the plaintiff came to him and said that the defendant had told him to bring the money in one hour and he should have the negroes; that he (witness) then loaned the plaintiff four hundred dollars, and went with him and heard him tender it to the defendant and demand the negroes, to which the defendant made no answer.

It was also proved by two witnesses that when the defendant was about to sell the negroes, in an excited conversation with the plaintiff, he said the plaintiff might redeem the negroes then if he would pay the money in one hour. It was further in evidence that the plaintiff did tender the four hundred dollars. The negroes were variously estimated by the witnesses at from five to seven hundred dollars. The defendant gave in evidence a bill of sale from the plaintiff for the negroes, and also a bill of sale from the plaintiff to R. S. Carter for one of the negroes, which he had procured from the said R. S. Carter upon paying him two hundred of the four hundred dollars which were advanced for the negroes, and proved that the payment was so made to the said R. S. by direction of the plaintiff. It was also proved that possession accompanied the bill of sale. Both bills of sale are absolute in terms. One is expressed to be upon consideration of four hundred, the other of two hundred and seventy-five dollars. The jury returned a verdict for the plaintiff for two hundred and sixty dollars. The defendant moved for a new trial, upon the ground that the verdict was against law and evidence; which being refused, he prosecuted this writ of error.

Hamilton & Green and Mayfield, for plaintiff in error.

I. The court erred in overruling the demurrer, there being no allegation in the petition which authorized the introduction of parol testimony to defeat the bill of sale or change its character. To do this there must have been charged fraud, mistake, or surprise. (1 Pow. on Mortgs., 126, note p. and authorities cited; Story Eq. Pl., 526; 8 New Series, 345, and authorities cited in the conclusion of the opinion.)

II. The court erred in refusing to grant the motion for a new trial. The proper test in determining whether or not an instrument, absolute upon its face, is a mortgage or a conditional sale, is the existence or non-existence of the relation of debtor and creditor between the parties. If that relation does not exist, it cannot be a mortgage. (Hard. R., 6; Stamper v. Johnson, 3 Tex. R., 1, and authorities cited; 9 Wheat. R., 489.) The party here setting up the mortgage must not only show the relation of debtor and creditor, but must show such a state of facts as would entitle the mortgagee to sue for and recover the money which the alleged mortgage was intended to secure. The principal and interest of the party against whom the right of redemption is sought to be enforced in this case must have been secured to him, or at least his right to the recovery thereof made manifest--the right of parties to every contract being mutual and reciprocal. (7 Cr. R., 218; Comyn on Cont., 6; 2 Bl. Com., 444.)

III. The defendant in error having failed to show such a state of facts as will determine the bill of sale to be a mortgage, the transaction cannot be regarded as a defeasible purchase with stipulations of repurchase, except upon sufficient proof (in support of a charge of fraud, mistake, or surprise) of such an understanding between the parties at the time of the execution of the bill of sale. (5 Litt. R., 75, 76, and authorities cited; 1 Pow. Mortgs., 126, note p., and authorities cited; Story Eq., sec. 1018.)

And any subsequent promise of the plaintiff in error in relation to the repurchase by defendant in error, (although supported by a consideration,) if by parol and not to be performed within one year, would be obnoxious to and within the operation of the statute of frauds. (4 Acts, p. 28; 1 Story Eq., sec. 64.)

Inadequacy of price alone will not be sufficient to determine a deed absolute upon its face to be a mortgage; other facts or concurring circumstances must be shown. (7 Cr. R., 218; 1 Story Eq., secs. 248-251.)

IV. The application of these principles to the facts of the case show most conclusively the error that intervened in the judgment and proceedings of the court below. There was no proof of any parol agreement for the redemption of the...