Gibbs v. Penny

• Decision Date: 01 January 1875
• Citation: 43 Tex. 560
• Parties: P. F. GIBBS ET AL. v. MARY ANN PENNY ET AL.
• Court: Texas Supreme Court

43 Tex. 560

P. F. GIBBS ET AL.

v.MARY ANN PENNY ET AL.

Supreme Court of Texas.

1875.

APPEAL from Panola. Tried below before the Hon. George Lane.

Drury Field, for appellants.

A. M. Carter, for appellees, cited Hughes v. Edwards, 9 Wheat., 495;Skinner v. Miller, 5 Littell, 86; 2 Story Eq., secs. 1018, 1019; Russell v. South, 12 Wheat., 147; Thompson v. Davenport, 1 Wash., 126; Ross v. Norvell, Ib., 14; Day v. Dunham, 2 Johns. Ch., 182;Conway v. Alexander, 7 Cranch, 237;Secrest v. Turner, 2 J. J. Marsh, 471;Bright v. Wagle, 3 Dana, 253;Mann v. Falcon, 25 Tex., 271; Van Vronker v. Eastman, 7 Met., 157; Mahone v. Williams, 39 Ala., 202.

J. G. Hazlewood, also for appellees, cited 4 Kent, 159; Stamper v. Johnson, 3 Tex., 1;Mead v. Randolph, 8 Tex., 196;Buford v. Holliman, 10 Tex., 560;Hawley v. Bullock, 29 Tex., 222;Watkins v. Edwards, 23 Tex., 447;Hill v. The State, 27 Tex., 609;Weathered v. Boone, 17 Tex., 149;Thomas v. Hill, 3 Tex., 270;Egery v. Powers, 5 Tex., 501;Simpson v. Huston, 14 Tex., 476;Swinney v. ??ooth, 28 Tex., 113;Castro v. Gentilly, 11 Tex., 29.

GOULD, ASSOCIATE JUSTICE.

It is evident that the jury found for the plaintiffs on the ground that the conveyance made by John W. Penny to defendant Gibbs, though absolute on its face, was, in fact, designed to operate as a mortgage, and that the defendant, Margaret Moore, had notice of the real nature and object of the transaction. The principal question in the case is the sufficiency of the evidence to support this finding.

The account of the matter given by defendant Gibbs himself is, that Penny being at the time indebted to Gibbs on account, and wishing to take a trip to Alabama for the purpose of getting money there, applied to him to borrow two hundred dollars to enable him to make the trip. Gibbs says that he refused to lend him the money, but told him that “if he would deed him the land in question, he would let him have the two hundred dollars to go to Alabama on;” and further said that he told Penny he would reconvey the land “to him, Penny, if Penny would come back in three months and pay the two hundred dollars back with 25 per cent. interest on the same; to which Penny agreed, and the deed was executed and the money paid to Penny; that he did not want the land, but he thought if he could let Penny have this money he would go to Alabama, get the money, and pay it back with the interest, and he thought he could get pay for the account, was why he let him have the money.” Whilst he says that the deed was not a mortgage, he also says that he would not have let Penny have the money without security; and that if Penny had come back and paid the two hundred dollars with interest within the three months, he would have reconveyed the land; but that as he did not, he, Gibbs, regarded the land as his own. The deed is in the ordinary form, with covenants of warranty, and recites a consideration of two hundred dollars. Gibbs testifies that at the date of the deed, February 7, 1867, two hundred dollars was as much as the land was worth; but there is other testimony to the effect that it was at no time worth less than five hundred dollars, and one witness says it was worth one thousand dollars in February, 1862; that Penny and wife paid five hundred dollars for it in 1851; that there were sixty or seventy acres of open land, the annual rent of which was estimated by no witness at less than $1.50 per acre, and by most at rates that would make its annual rental equal or exceed two hundred dollars. It was in proof that before leaving for Alabama, Penny rented the improved land on the place to James Donohue for the year 1867 for $2.25 per acre, and that this tenant was still on the place in November, 1867, when Margaret Moore bought of Gibbs. Margaret Moore, the other defendant, denies in her testimony that Gibbs told her his claim was a mortgage, but at the same time shows that Gibbs had given her substantially the same account given by him on the stand; and further, that Gibbs told her “that Mr. Penny had told him or wrote to him that if he, Penny, was not there by a certain time, that he, Gibbs, could sell the land and make his money out of it.” It was in evidence, brought out by questions propounded by the defendant, that Penny in his lifetime claimed that the transaction was a mortgage.

It does not appear when Penny returned, but in his absence defendant Margaret Moore bought of Gibbs and moved on the place whilst Donohue was still there as tenant of Penny.

We think these facts sufficient to justify the verdict.

That a deed, absolute on its face, may be controlled by parol evidence, showing that it was intended as a mortgage, has long been the settled law in this State. (Stampers v. Johnson, 3 Tex., 1;Carter v. Carter, 5 Tex., 93;Mead v. Randolph, 8 Tex., 196.)

The character of the transaction is determined, not by the form of the contract, or the name given it by ...