Hancock v. Sammons

• Decision Date: 19 March 1954
• Docket Number: No. 15491,15491
• Citation: 267 S.W.2d 252
• Parties: HANCOCK v. SAMMONS et al.
• Court: Texas Court of Appeals

Page 252

267 S.W.2d 252

HANCOCK v. SAMMONS et al.

No. 15491.

Court of Civil Appeals of Texas, Fort Worth.

March 19, 1954.

Rehearing Denied April 23, 1954.

Nelson & Sherrod and Eugene Sherrod, Jr., Wichita Falls, for appellant.

Arch Dawson, Wichita Falls, for appellees. appellees.

MASSEY, Chief Justice.

Appellees, Nova Rogers Sammons and husband, Mack Sammons, brought suit against F. S. J. Hancock, appellant, for the cancellation of three instruments which, upon their face, appear to be deeds but which the appellees alleged were in fact intended to be mortgages to secure payment of debt.

Judgment was entered in favor of the appellees, and it was held that the instruments were equitable mortgages securing debts which had been fully paid, and that appellant had been overpaid in the amount of $407.63. The instruments were canceled and judgment was rendered for appellees and against appellant for $407.63 plus interest and costs. From this judgment appeal was taken.

Judgment reversed and cause remanded.

Appellant's pleadings embodied a general denial, allegation that the deeds of April 10, 1945, and December 17, 1945, were intended by all parties to be absolute conveyances without contingencies or conditions, and that the deed and conveyance of October 31, 1946, was intended by all parties to be a conditional sale, the conditions being recited in a letter from appellant to appellees, dated November 26, 1946, which conditions were never performed. This letter reads as follows:

'I hereby promise to reconvey back to Nova Rogers Sammons and Mach Sammons the interest in the property conveyed to me by grant Deed dated October 31st 1946 on or before the 26 day of November 1949 for the consideration of Five Thousand and No/100 dollars. The reconveyance being subject to the assignment of Leases and Oil Royalties and to the balance due me on the note signed the 24 day of July 1946 in the amount of Four Thousand Two hundred fifty and No/100 dollars.'

In separate issues submitted the jury found that each of said instruments was given for the purpose of securing the payment of all or part of the indebtedness then owing to appellant. Other issues were in favor of appellees' contentions that certain amounts of money were owing by appellees to appellant on certain pertinent dates. Special Issue No. 15 was framed so as to read: 'Do you find from a preponderance of the evidence that when the deed dated October 31, 1946, was given, it was the intention of all parties thereto that it was to be a conditional sale with the right of plaintiffs, Sammons, to repurchase upon certain agreed conditions and within a certain period of time?' To the question asked the jury replied 'Yes'. A further issue, Special Issue No. 16, conditionally submitted contingent upon an affirmative answer having been made to the above issue, was framed in the following language: 'Do you find from a preponderance of the evidence that the letter dated November 26, 1946, signed by F. S. J. Hancock, and introduced in evidence as plaintiffs' exhibit 21, correctly reflects the conditions, if any, as agreed upon by all parties at that time?' To this question, so asked, the jury replied 'No'.

In entering the judgment for the appellees the trial court necessarily ignored the jury's answer to Special Issue No. 15, which, we believe, operated to contradict the findings through answer to prior issues, the effect of which amounted to a jury finding that the instrument dated October 31, 1946, and which indisputably was executed and delivered on date of November 26, 1946, was an equitable mortgage. Because of this conflict we believe that a mistrial resulted and that the trial court was without authority to enter a judgment.

Prior to consideration of the question of conflict occasioned by the jury's answer to Special Issue No. 15, we examine Special Issue No. 16 and its answer, which apparently would be contradictory to that given to No. 15 upon which its submission was conditioned. Had the suit been one wherein it was attempted to enforce a conditional sales contract, the conditions of which were contended by one party to have been met, and by the other to the contrary, the details of the conditions would have been material and necessary to be determined in connection with the enforcement of any rights of the parties thereto. The question would have been an ultimate issue because by the answer thereto the rights of the parties would be established. In the instant case, however, there was actually no question in the lawsuit which would have been controlled by the answer of the jury for the simple reason that if it was a conditional sale that was intended and effected by the parties in their transaction of November 26, 1946, the maximum period of time within which the appellees could have repurchased the property under and by authority of such a contract had expired before this suit was tried. Though the suit was filed before the time expired, it does not appear that prior to the time the option to repurchase expired the appellees ever performed, or conditionally or unconditionally offered to perform, whereby any questions involved in their determination became material. Therefore we believe that Special Issue No. 16 was evidentiary only. If it is contradictory to the answer given to the issue upon which it was conditionally submitted, nevertheless it is not a controlling issue under the particular defense necessary to the appellant in the case, and therefore it leaves uncontradicted the controlling issue preceding it, which was all that was necessary to appellant's defense. 41-B Tex.Jur., p. 810, sec. 585; Millers' Indemnity Underwriters v. Schrieber, Tex.Civ.App. Beaumont, 1922, 240 S.W. 963, error refused; Karger v. Rio Grande Valley Citrus Exchange, Tex.Civ.App. San Antonio, 1944, 179 S.W.2d 816, error refused, w. m. While it is immaterial here, before arriving at this conclusion we carefully examined the instrument the issue makes the inquiry about and it appears to our minds that except for its provision relative to time it is subject to construction for various reasons and would require parol testimony to clarify its provisions. Certainly it would be necessary to have something additional to show what Hancock was owed on November 26, 1946, and also what the consideration payable to him would have amounted to in the event of a reconveyance at any date subsequent thereto. The parol testimony we find in the record about it and about what the actual agreement was regarding reconveyance of the real or record title to the property still leaves some doubt as to the actual time agreed upon within which an instrument of reconveyance would be executed, if a time limit applied at all, and also leaves doubt as to the actual amount of consideration attendant to such an execution, and we would find it difficult indeed to answer the issue in a way other than the way the jury answered it.

Since it is undisputed and not here in controversy that the jury's answers to other Special Issues operated as a finding that the transaction of November 26, 1946, was intended to and operated to give effect to the deed dated October 31, 1946, as a mortgage only, we will consider the effect of the question and answer in Special Issue No. 15.

If Special Issue No. 15 does not constitute a question of law (call for a legal conclusion by the jury) but constitutes a fact question upon an ultimate issue, then the question would persist upon whether it was raised and supported by the evidence. Any question in this regard was waived by the appellees, and it would be deemed to have support in the evidence as no objection to its submission was made on this ground, and no motion to disregard the jury's answer to the issue was made after the answer was returned. In the absence of any such motion the trial court would be powerless to summarily set aside and ignore such answer. Texas Rules of Civil Procedure, rule 301; 41-B Tex.Jur., p. 820, et seq., secs. 592, 593; St. Louis, B. & M. Ry. Co. v. Huff, Tex.Civ.App. San Antonio, 1933, 66 S.W.2d 373; Traders & General Ins. Co. v. Heath, Tex.Civ.App. Galveston, 1946, 197 S.W.2d 130, refused, n. r. e.

We believe that the question actually asked was whether the transaction of November 26, 1946, was intended by all the parties to be a transaction wherein the deed dated October 31, 1946, was to be (and evidence) a conditional sale (of the property described in such deed) from the appellees to the appellant with right preserved in the appellees to repurchase it upon conditions agreed upon between the parties if such conditions were met by the appellees within a prescribed period of time.

A conditional sale of real estate actually is an executed contract passing title from a grantor to a grantee subject in the first instance to specific conditions upon which reconveyance is to be made to the grantor. Lusher v. First National Bank of Fort Worth, Tex.Civ.App. Fort Worth, 1953, 260 S.W.2d 621, writ refused, n. r. e.; Brannon v. Gartman, Tex.Com.App.1926, 288 S.W. 817.

The contract between the parties will of course operate to be and become what the parties intended if not inhibited for reasons of law, (and in this instance there is no inhibition in such respect) and their intent, once established, would operate to effect the transaction as intended, whether it be an equitable mortgage or a conditional sale.

The term 'conditional sale' is a technical term and has a legal meaning and definition. Likewise are the terms 'negligence' and 'proximate cause' in a personal injury negligence case, and 'testamentary capacity' in a will case. In such cases we find definitions ordinarily given in the court's charge to the jury of the terms, and then we find the terms embodied in special issues. These special issues sometimes seem to pose questions to the jury upon mixed questions of law and fact, yet if it is the fact which is left for the jury there is no error in...