Hannay v. Thompson
| Decision Date | 01 January 1855 |
| Citation | 14 Tex. 142 |
| Parties | R. B. HANNAY, ADM'R, v. LOUISA L. THOMPSON. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Where the plaintiff brought an action of trespass to try title, and the defendant pleaded not guilty, and gave in evidence an absolute conveyance of the property from the plaintiff, it was held that it was competent for the plaintiff to introduce parol testimony to show that the conveyance was in fact a mortgage, but that she could not recover possession of the property without satisfying the mortgage. (Note 20.)
Appeal from Harris. Action of trespass to try title. Defendant pleaded not guilty. On the trial the defendant admitted title from the State to the plaintiff, and gave in evidence an absolute deed of conveyance of the property and possession under it from the plaintiff; whereupon the plaintiff offered to introduce parol evidence to show that the conveyance was executed to secure the payment of borrowed money, to which the defendant objected on the ground that there was no averment of such fact or of the mortgage in the plaintiff's pleadings, and because there was nothing in the plaintiff's pleading which gave notice to the defendant that the suit was brought to redeem the mortgaged property, and the plaintiff did not show a readiness and ability to discharge the mortgaged debt. The objection was overruled and plaintiff's evidence admitted, and defendant excepted. The court charged the jury that if they found that the conveyance given in evidence by the defendant was executed to secure the payment of borrowed money, it was a mortgage, and as it had not been pleaded by the defendant they should disregard it in rendering their verdict; to which charge the defendant excepted. The jury returned a verdict for the plaintiff, upon which judgment was rendered, and the defendant appealed and assigned as error the ruling of the court in admitting the plaintiff's evidence to prove the conveyance a mortgage, and in charging the jury to disregard the mortgage in rendering their verdict.
Palmer & Jordan, for appellant.
I. At law, after forfeiture the mortgagee is entitled to the possession of the mortgaged premises.
II. Both courts of law and equity will protect the mortgagee in possession until the entire debt is paid. (
III. The equities between the parties will be disposed of in this particular action. (5 Tex. R., 23, 31; 12 Pet., 11; 1 Wash. C. C. R., 322; 2 Stewart & Porter R., 160.)
Allen & Hale, for appellee. The questions involved are--
1st. Was it competent for the plaintiff to show by parol and other proof that the absolute conveyances on which the defendant relied were nothing but a mortgage and subsequent transfers, and vested only a mortgage interest, if any, where no allegation to that effect appears in the petition?
2d. If so, was the defendant entitled, under his general denial and plea of not guilty, to recover back the mortgage debt?
I. It is too well settled to require any reference to authorities that a deed absolute on its face may, by parol or other proof, be shown to be a mere mortgage; and to establish the first point in favor of the appellee, it is only necessary here to remark that, as the defendant is permitted by statute to introduce proof of adverse title under his plea of the general issue, the plaintiff must be at liberty to introduce rebutting evidence without any corresponding allegation in the petition. Any other rule would work a legal surprise. (Underwood v. Parrot, 2 Tex. R., 68; Hunt v. Turner, 9 Tex. R., 385.)
II. As to the second point, it is sufficient to observe that it was at the option of the defendant below to have relied on his title as a bar to recovery, or to have pleaded it in reconvention and claimed relief against the plaintiff; and having chosen the former course, he is bound by it, and cannot now alter his case because the proof has turned out different from his expectations. He has not apprised the plaintiff that he intended to foreclose the mortgage and desired a cross-judgment for the debt; indeed his whole course has been to contradict that supposition.
If the defendant had pleaded his title specially under the decisions of the court, (Rivers v. Foot, 11 Tex., 662;Paul v. Perez, 7 Id., 338,) the plaintiff might have been required to give notice by pleading of the intention to show by parol evidence that the absolute conveyance under which the defendant claimed and held possession was a mortgage. But as the conveyance was not pleaded, and the plaintiff had not notice of the title under which the defendant claimed, she was not bound to anticipate his defense or the evidence he would adduce in support of it, and had the right to rebut such evidence, or avoid the effect of it when introduced, by any evidence in her power. (Ib.) The evidence, therefore, was rightly admitted, and showed doubtless what was the truth of the case, that the conveyance was a mortgage. That point is now conceded and does not require further notice.
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