Hubby v. Harris

• Decision Date: 15 February 1887
• Citation: 3 S.W. 558
• Parties: HUBBY <I>v.</I> HARRIS and others.
• Court: Texas Supreme Court

Page 558

3 S.W. 558

HUBBY

v. HARRIS and others.

Supreme Court of Texas.

February 15, 1887.

Appeal from Waller county.

H. S. Hubby, pro se. T. S. Reese, for appellees.

GAINES, J.

This is the third action brought by appellant for the recovery of the lots in controversy. The first was instituted in 1873, and was dismissed in 1875. Shortly after its dismissal, the second was brought, and resulted in a judgment for the defendant. Upon the theory that it was an action of trespass to try title, within 12 months from the rendition of that judgment the present suit was instituted against appellees, all of whom claim under the defendant in the former actions. The decision of the case now before us depends upon the construction of the following instrument executed and delivered to appellant by J. H. Nooner, under whom all of appellees claim:

"County of Austin, State of Texas: I, the undersigned, do herein promise, bargain, and agree, when H. S. Hubby shall pay to me the sum of six hundred dollars, and the interest on the same at $25 per month, for two months, or sixty days, that I will deliver up to said H. S. Hubby possession of the block of ten lots in the town of Hempstead, Austin county, known as the Hubby property, which was deeded to me by Hunt & Holland, of Bellville, Austin county, Texas. My receipt for the said money shall be an acknowledgment from me that the said deed executed to me from the said Hunt & Holland shall be null and void.

"Witness my hand this thirtieth day of October, 1871.

                                                                     "J. H. NOONER."
                

Is this instrument a mortgage or a conditional sale? If the court below was justified in holding it to be the latter, the judgment must be affirmed. Conceding the proneness of debtors to exact of necessitous borrowers hard and inequitable bargains, the courts incline to afford relief to the latter, in this class of cases; and, in doubtful instances, are disposed to construe such instruments as mortgages only. It is admitted, however, that a conditional sale is neither against the justice or the policy of the law. If, therefore, it appears from the instrument itself, together with such other legal evidence as may be adduced, that it was the intention of the parties to make a contract of sale, it will be enforced according to its terms. Conway v. Alexander, 7 Cranch, 218. Much latitude has been indulged in by the courts in construing these instruments, and it seems impossible, therefore, to deduce from the decisions any rule that will be decisive of every case. This much, however, seems to be settled: if the face of the papers themselves show clearly a mortgage, no parol evidence will be admitted to vary their terms. This rule has also been recognized when the written instruments clearly express the intention of the parties to make a conditional sale; but it may be doubted if it has been universally followed. But if the true intention and meaning of the parties cannot be arrived at from the fact of the writings themselves, then parol evidence may be resorted to, in order to determine the question. It is settled law that, in order to constitute a mortgage, there must be a debt to be secured. Chief Justice MARSHALL says in Conway v. Alexander, supra: "It is therefore a necessary ingredient in a mortgage that the mortgagee should have a remedy against the person of his debtor." See, also, Astugueville v. Loustaunau, 61 Tex. 233; Ruffier v. Womack, 30 Tex. 342; Alstin v. Cundiff, 52 Tex. 460.

Now, it is apparent that the instrument signed by Nooner, and delivered to appellant, makes no mention of any debt due by the latter to the former. There is nothing in it to justify us in inferring that any such obligation existed. Hence the appellant was compelled to resort to extraneous evidence in order to make out his case. This evidence showed that he had originally purchased the property of one Peebles, as trustee, and paid only a part of the purchase money; that a suit was instituted against him to enforce a lien for the balance of the money due upon the property, and a judgment rendered against him accordingly; that the lots were sold by virtue of an order of sale under this judgment, and that one Mrs. Peebles became the purchaser, and subsequently sold the lots to Hunt & Holland; that he claimed that the sale was invalid, and brought suit to set it aside, and that, pending this suit, he compromised with Hunt & Holland, agreeing to pay them $600 within a certain time, in consideration of their contract that, if the money was paid within the time, they would convey the lots to him. It was also shown that the time being very nearly expired, and the money not having been paid, he applied to Nooner, and that Nooner paid the money to Hunt & Holland, they making him a deed to the property. This deed, which is evidently the same referred to in the instrument heretofore set out, is dated October 31, 1871, — it is presumed, by mistake, because they appear to have been executed at or about the same time. Appe...