Keller v. Kirby
| Decision Date | 03 February 1904 |
| Citation | 79 S.W. 82 |
| Parties | KELLER v. KIRBY.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Gonzales County; M. Kennon, Judge.
Action by Jake Keller against Roy Kirby. Judgment for defendant, and plaintiff appeals. Affirmed.
B. R. Abernethy and Harwood & Walsh, for appellant. W. D. C. Jones and Yancey W. Holmes, for appellee.
Appellant sued appellee, a minor, and Charles J. Engelhart and Eleanor Engelhart, to establish his title to 100 acres of land off the John Atkinson survey in Gonzales county. The Engelharts disclaimed any interest in the land, and were dismissed from the suit. The cause was tried by jury, and resulted in a verdict and judgment for appellee.
The facts are these: In 1894, James Kirby, the father of appellee, borrowed $1,000 from appellant, and to secure its payment gave a promissory note and a deed to appellant to the land in controversy. The money was not paid, and appellant testified that James Kirby proposed that appellant should return to him his promissory note, and that the deed, which was in fact a mortgage, should convey the title to appellant; and the proposition was accepted, and the note returned to James Kirby. James Kirby lost his life in the Galveston flood in September, 1900. Appellee is his sole heir.
In an ex parte deposition of appellant he was uncertain as to whether Kirby agreed to let him have the land for the debt or not, but said that was the case if he remembered "rightly." He did not remember at that time whether it was $800 or $1,000 he loaned Kirby. He forgot that he owned the land until after Kirby's death. He had never paid any taxes on the land, and had never been in possession of it. It does not appear that he advanced any claim to the land until he filed his suit in October, 1902, two years after Kirby's death, and perhaps eight years after he says the land was conveyed to him by Kirby's parol agreement. The testimony was so unreasonable and unsatisfactory that the jury were justified in finding, if they saw fit, that no such parol agreement was ever made. The negotiations and conversations of James Kirby with appellant were admitted, doubtless, because appellee found it necessary to prove the circumstances constituting the deed a mortgage by appellant; but it is not apparent why appellant was allowed to testify as to a verbal sale of the land to him by Kirby.
The court instructed the jury that they should return a verdict for appellee if it was found that the deed was a mortgage executed to secure a debt due by James Kirby to appellant. The charge is attacked by appellant, who advances the proposition that a deed in fact a mortgage given to secure the payment of a sum of money can be transformed into an absolute conveyance of the land by a cancellation of the note given for the debt and a parol agreement that the deed shall convey the absolute title to the land. A number of authorities have been cited by appellant, none of which sustains his proposition. The authorities cited that touch the matter at all hold, as did the trial judge in this case, that, if the instrument of writing was ever a mortgage, it continued a mortgage, and remained in full force and effect until it was abrogated by a new contract supported by an adequate consideration. Ruffier v. Womack, 30 Tex. 332. The entire testimony shows that the instrument, though in form a deed, was a mortgage given to secure a debt. Being a mortgage, under the Texas doctrine, the title to the property remained in James Kirby, the mortgagor, and would so remain until there was a foreclosure of the lien evidenced by it, or a voluntary conveyance in writing sufficient to convey the title to real estate. Soell v. Hadden, 85 Tex. 189, 19 S. W. 1087; Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284. Had the instrument been in form a mortgage, it would not for a moment be contended that title to the land could be passed by a parol agreement on the part of the mortgagor, and that neither a foreclosure nor a written conveyance would be necessary to place the title to the land in the mortgagee. It can with no greater reason be contended that, because the mortgage assumed the form of a deed, the mortgagor could give it the effect of an absolute conveyance simply by declaring that it should be in the future in essence what it had been and was in form. If it was in fact a mortgage when...
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