Hume v. Le Compte

• Decision Date: 20 December 1911
• Parties: HUME v. LE COMPTE et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

142 S.W. 934

HUME v. LE COMPTE et al.^†

Court of Civil Appeals of Texas. San Antonio.

December 20, 1911.

On Motion for Rehearing, January 17, 1912.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by George L. Hume, for whom, after his death, Winifred Hume, his executrix, was substituted, against Leon Le Compte and others. From a judgment for defendants plaintiff appeals. Affirmed.

Swearingen & Tayloe, for appellant. Clark & Bliss, for appellees.

FLY, J.

George L. Hume instituted a suit to try title to 14.6 acres of land in Bexar county, being survey 53, surveyed by virtue of I. & G. N. certificate No. 23/80, against Leon Le Compte, Octavia Le Compte, and William Cassin. Afterwards, a motion to substitute Winifred Hume as plaintiff was made, in which it was alleged that George L. Hume had died leaving a will in which appellant had been appointed sole and independent executrix, without bond, and that the will had been duly probated, and she had qualified as executrix, and the court permitted the substitution. Cassin filed a disclaimer, alleging that since filing his original answer he had conveyed all of his interest in the land to Octavia Le Compte. The Le Comptes pleaded not guilty and five and ten years limitation. Appellant claimed the land through an instrument executed to George L. Hume on November 18, 1898, by Elizabeth Maddox. The cause was tried by the court without a jury and judgment rendered for appellees.

The land in controversy was patented to R. M. Thomson by the state of Texas, on March 11, 1879, and was conveyed by him to Elizabeth Maddox, then a minor and the deed was acknowledged by him on September 26, 1879. Frank Maddox was the guardian of the estate of Elizabeth Maddox. She executed the instrument to George L. Hume through which appellant claims, on November 18, 1898, after she was 21 years of age. The instrument was in form a deed, but it was testified by F. M. Maddox, the father of Elizabeth Maddox, that he desired to borrow money from George L. Hume, and he executed a note and got his daughter to convey the land to Hume; the understanding being that if F. M. Maddox paid the note the land should be reconveyed to Elizabeth Maddox. That testimony was not contradicted. Appellees claimed that the land in controversy was a part of the R. T. Higginbotham survey, and the finding of the court that the land is included within the boundaries of the Higginbotham survey, which was located in 1838, long prior to the location of the survey under which appellant claims, is supported by the evidence, as is the finding that the northeast and southeast corners of the Higginbotham survey are now, and have since the location been, well known and established. The land was fenced in 1887 by Le Compte and has, with some breaks, been in his possession all the time since. Neither Thomson, Elizabeth Maddox, George L. Hume, or appellant ever at any time was in possession of the land in controversy.

If, as testified by F. M. Maddox, it was the intention of the parties that the deed absolute on its face should be security for a debt, upon payment of which the land was to be reconveyed, the instrument was a mortgage. The character of the instrument must be determined by the intention of the parties. Stamper v. Johnson, 3 Tex. 1; Carter v. Carter, 5 Tex. 93; Fowler v. Stoneum, 11 Tex. 478, 62 Am. Dec. 490; Gibbs v. Penny, 43 Tex. 560; Loving v. Milliken, 59 Tex. 423; Brooks v. Young, 60 Tex. 32. That the instrument was given to secure a debt can be proved by parol testimony is held in all the cases cited.

In this case there was no time designated at which the debt should be paid, and one of the essentials of a conditional sale was wanting, and the acts of the parties and the circumstances do not tend to show that the parties regarded it a sale. Miss Maddox was not interrogated, and of course there is no one but herself could tell how she regarded the transaction, and Hume was dead. It appeared, however, that he made no claim to the land until this suit was instituted; that he did not enter into possession, nor is it shown that he paid taxes on it. The instrument was evidently intended as security for a debt, and as between a mortgage and a conditional sale equity will construe the instrument as a mortgage. Walker v. McDonald, 49 Tex. 458; Gray v. Shelby, 83 Tex. 405, 18 S. W. 809; Smith v. Anderson, 8 Tex. Civ. App. 188, 27 S. W. 775.

There was a debt, and there was no direct evidence that it was ever paid; but the long lapse of time and other circumstances would create the presumption that the debt had been paid by the owner of the land, and, when paid, of course the mortgage was satisfied. De Bruhl v. Maas, 54 Tex. 464.

Appellant seems to labor under the view that appellees set up an equitable outstanding title, but by appellant's witness it was shown that the instrument, which on its face was a deed, was in truth and fact a mortgage, and being a mortgage, it was only security for a debt, and the title to the property remained in Elizabeth Maddox, as well as the right of possession. Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284; Erwin v. Blanks, 60 Tex. 583; Pratt v. Godwin, 61 Tex. 331; Wilkins v. Bryarly, 46 S. W. 266.

No doubt can arise, under the various decisions of this state, that a mortgagee cannot sustain an action of trespass to try title based on his mortgage, because neither the title to the land nor the right of possession is in him, and as every instrument, no matter what its form may be, that is given as security for a debt, is a mortgage, an instrument, in form a deed, but executed with a contemporaneous agreement that it was merely made to secure a debt, would be a mortgage, and when that fact is developed the party claiming under such deed must fail. While prima facie a deed, when the mask is torn from it and it becomes merely a security for debt, it has no more force, and can form no safer basis for the recovery of land than if in manner and form a mortgage. If in the form of a deed, an innocent purchaser might be protected from proof of its being a mortgage on the ground that estoppel as to the maker of the instrument would prevent any one from setting it up; still, where no such rights are involved, any one can set up the defense, because, being in truth a mortgage, the legal title was still in the owner of the land.

Appellant, being a mortgagee, had no possessory right to the land, and without such right she had no foundation for a recovery of the land. It is true that in most, if not all, of the Texas cases in which it has been held that a party cannot recover on a deed shown to be a mortgage, the suits have been between the mortgagor and mortgagee, or parties holding under them; but we can see no reason why it cannot, under the Texas theory that a mortgage does not pass the legal title or the right of possession, be used as a weapon of defense even by a trespasser, for the burden is on the plaintiff to show that he has been ousted of his possession, or that he has the legal title to the land and has a possessory right. We fail to see the distinction between a deed which is in fact a mortgage, when stripped of its cloak, and the instrument which is a mortgage on its face, and, if the latter cannot form the basis for a recovery in an action of trespass to try title, the former cannot either. As said in Gray v. Shelby, 83 Tex. 405, 18 S. W. 809: "It matters not what the language used or the form imparted to the instrument; if it was intended to...