Loving v. Milliken

• Decision Date: 11 May 1883
• Docket Number: Case No. 4889.
• Citation: 59 Tex. 423
• Parties: SUSAN D. LOVING ET AL. v. SAM. H. MILLIKEN.
• Court: Texas Supreme Court

59 Tex. 423

SUSAN D. LOVING ET AL.

v.SAM. H. MILLIKEN.

Case No. 4889.

Supreme Court of Texas.

May 11, 1883.

APPEAL from Parker. Tried below before the Hon. A. J. Hood.

Suit by Susan D. Loving, joined by her son, G. B. Loving, against Sam. H. Milliken, to try title and for the possession of a lot of land in Parker county, worth $2,000, and also for the used rents of the same from the 1st day of January, 1881, worth $20 per month, and to remove a cloud from her title. The claim set up by appellee she averred to be, first, a deed, in form, made by plaintiff Susan D. Loving to her son and co-plaintiff, George B. Loving; and second, a deed, in form, made by G. B. Loving to appellee, both of which bear date the 24th day of April, 1880. Appellant S. D. Loving charged that they were made and delivered on the said 24th day of April, 1880, to appellee Sam. H. Milliken, to secure him for money loaned by him to plaintiff George B. Loving, under the following circumstances, to wit: That on the said 24th day of April, 1880, George B. Loving was publishing a stock journal and manual, and became very much in need of $300 with which to run the business; he applied to Sam. H. Milliken, who was a banker, for a loan, when Milliken informed him that he would let him, Loving, have the money if he could secure him therefor. When Loving proposed to give him his mother and co-plaintiff as security, Milliken said that her name would not make it good. George B. Loving then proposed that his mother would give him, Milliken, a mortgage upon her place, meaning the place in controversy, when Milliken replied that it had been her homestead and that he did not want to take a mortgage upon it, but suggested to Loving that if he could or would get his mother to make him, Loving, a deed, and then Loving would make him, Milliken, a deed, that he, Milliken, would then loan him the $300 on the place, and if the same was paid back with interest in a reasonable time, that he would reconvey to him; that said Loving then went to the deputy county clerk and had deeds prepared, as suggested by Milliken, and appellant Susan D. Loving signed the one purporting to convey the place to George B. Loving, and he signed the one purporting to convey the place to Milliken; that Loving then went to appellee and delivered to him the two instruments on the 24th day of April, 1880, and that Milliken then loaned him the sum of $300 and placed the same to his credit in said bank, subject to his, Loving's, checks, and accepted the two deeds, in form, as security therefor, and agreed, in case he, Loving, should pay back the $300 and interest within a reasonable time, that he would convey the place back to Loving, and that he, Loving, drew out said money so borrowed from said appellee on the said 24th day of April, 1880. Appellant George B. Loving charged that he did not pay his said mother one cent for the making of the deed to him, and that appellee knew the facts and knew that she had only made it to enable him to incumber the same to the appellee for the sum of $300; that he, G. B. Loving, did not claim and never did claim any title to the land, and had joined Susan D. Loving in this cause for the purpose of having the title to the premises fully invested in Susan B. Loving upon her redeeming the same from the lien held by appellee for $300 and interest.

The facts, as shown in the opinion, sustained the averments in petition.

I. N. Roach and E. P. Nicholson, for appellants, cited Morrow v. Morgan, 48 Tex., 304;13 Tex., 630;4 Tex., 465;17 Tex., 312.

B. G. Bidwell, for appellee, cited 30 Tex., 332;45 Tex., 444;52 Tex., 353;52 Tex., 219;8 Tex., 196;14 Tex., 142;18 Johns. (N. Y.), 544.

WILLIE, CHIEF JUSTICE.

As the judge who tried this cause without the intervention of a jury has not placed upon record his conclusions of law and fact, we are unable to know whether he construed the deed from Geo. B. Loving to Milliken to be an absolute conveyance, and not a mortgage, or, holding it to be a mortgage, gave judgment for appellee because the full sum of money secured by it was not tendered in the petition. We are, therefore, compelled to consider both these grounds, and see if either was properly decided by the court below.

In determining whether an instrument is to be construed as an absolute conveyance or a mortgage when there is no defeasance expressly agreed upon, equity looks to all the circumstances preceding and attending the execution of the instrument, and sometimes to those which have subsequently occurred. Ruffier v. Womack, 30 Tex., 344;Colwell v. Woods, 3 Watts, 194. From these the transaction will take its hue, no matter what coloring the declarations and apparent agreement of the parties have attempted to give it.

If there was a debt due from the grantor to the grantee, or a loan made, which the instrument secures, the transaction will be deemed a mortgage, let it be disguised as it may. No...