Mackey v. Morrison

• Decision Date: 24 January 1952
• Docket Number: No. 12325,12325
• Citation: 245 S.W.2d 998
• Parties: MACKEY v. MORRISON.
• Court: Texas Court of Appeals

Page 998

245 S.W.2d 998

MACKEY v. MORRISON.

No. 12325.

Court of Civil Appeals of Texas, Galveston.

Jan. 24, 1952.

Rehearing Denied Feb. 14, 1952.

Lawler & Childress, Virgil Childress, Lawrence P. Gwin, of Houston, for appellant.

Fouts, Amerman & Moore, J. W. Moore, of Houston, for appellee; A. E. Amerman, Jr., of Houston, of counsel.

GRAVES, Justice.

This was a trespass to try title suit, filed in the District Court of Harris County by appellant W. S. Mackey against appellee Walter L. Morrison, to recover an undivided one-half interest in certain lands and oil, gas, and mineral interests, leases, royalties, and overriding royalties, in lands, all situated in Brazoria, Colorado, and Lavaca Counties.

The case was tried before the Court without a jury, and resulted in a judgment that appellant take nothing by his suit.

The Court filed findings of fact and conclusions of law, upon which the judgment was based.

No objections to either the findings or conclusions made were presented, nor were there any requests for additional or further findings of either sort.

In protest here against the judgment so adverse to him below, the appellant presents these points of error:

(1) The Court erred in refusing to hold that, under the express and unambiguous terms of the escrow agreement, the escrowed deed from Mackey to Morrison, dated August 30, 1947, conveying the properties sued for herein, was only a mortgage, and not a presently effective conveyance of Mackey's fee-simple title to said properties.

(2) The Court erred in holding that, despite the express and unambiguous terms of the escrow agreement to the contrary, the escrowed deed from Mackey to Morrison, dated August 30, 1947, conveying the properties sued for herein, was a presently effective conveyance of Mackey's fee-simple title to such properties, from the moment it was deposited in escrow, on August 30, 1947.

(3) The Court erred in holding that Mackey's fee-simple title to the properties sued for herein was completely divested from him by the transactions between Mackey and Morrison, commencing on August 30, 1947, and ending on or about September 23, 1947.

Under these presentments, it is evident that the most material of the written documents between the parties were the Escrow Agreement' and the 'Escrowed Deed' from Mackey to Morrison, dated August 30, 1947; accordingly, copies of those two documents are hereto attached as 'Exhibits A and B,' and made a part hereof.

In other words, it is thus made evident that appellant pitches his whole cause on appeal upon his contention that the relations between himself and the appellee showed that, in legal effect, he had never given the appellee anything beyond a mortgage upon his one-half interest in the properties involved, despite their form, and there still remained in him the equitable right of redemption of his interest, which the trial court wrongfully denied to him. In support of that over-all contention he cites, among others, these authorities: Ullman v. Devereux, 46 Tex.Civ.App. 459, 102 S.W. 1163, writ ref.; Wilcox v. Tennant, 13 Tex.Civ.App. 220, 35 S.W. 865, writ ref.; 10 Tex.Jur. 159, p. 272; 17 Tex.Jur. 390, p. 858; 4 Pomeroy's Equity Jurisprudence (5th ed. 1941) Sec. 1193, pp. 568-570; 59 C.J.S., Mortgages, § 818, pp. 1561-1562; 2 Jones, Mortgages, 8th ed. 1928, Sec. 1326, pp. 788-790; 65 A.L.R. 771; 2 Pomeroy's Equity, Sec. 450, p. 280.

The appellee, in turn, thus in substance, replies to appellant's position: 'Rules of law applicable to a simple mortgagor-mortgagee relationship actually have no direct application to this case, which involves the dissolution and settlement of accounts between partners. Actually, where partners are involved, and one has advanced more money for the partnership-business than the other, the debtor-creditor relationship exists-not between the partners themselves-but between the partners and the partnership. But, even under the strict application of the principles of mortgage-law, the agreements here involved are in no way against public policy, or in no way gave rise to a situation, which resulted in Mackey being oppressively, or unfairly, deprived of his interest in these properties. * * * Mackey was given every fair opportunity to pay his way; but, having breached his original agreement * * *' he 'has no moral right, or claim, to the properties here involved. Certainly nothing that Morrison, or his attorneys, did imposed upon Mackey, or unfairly deprived him of his properties, * * *. The trial court, after hearing all the evidence, fairly arrived at his Findings-of-Fact and Conclusions-of-Law, and * * * Morrison was justly, * * * legally, and morally entitled to the judgment, which was entered by the court.'

The field of jurisprudence, to which appellant thus contends his cause is referable, is a vast one-so vast that this Court would hesitate to enter it with any expectation of adding anything to the rules and principles therein, which appear to have been fairly well settled in the general law; he, however, cites as one among the leading cases, upon which he depends in that connection, the decision of this Court in Wilcox v. Tennant, 13 Tex.Civ.App. 220, 35 S.W. 865 (writ ref.).

To the contrary of appellant's contention, the trial court found and held that no mortgage relationship had ever been intended, or in fact entered into, between the parties here; but that they had simply and plainly agreed upon in the documents so depended upon by the appellant, a dissolution and settlement of the accounts between them, without the intent or objective of leaving any right of redemption of the one-half interest in the properties so affirmatively conveyed from Mackey to Morrison, provided he did not pay his debt to the latter within the time agreed upon.

This Court is in agreement with appellant that perhaps no extant decision in Texas, or out of it, has more convincingly, or more clearly, stated the 'once a mortgage, always a mortgage' law than has Judge Williams in the Wilcox v. Tennant, 13 Tex.Civ.App. 220, 35 S.W. 865 (writ ref.), case; but, under the two quoted documents in this cause, and the uncontroverted findings of the trial court on the facts, as to how they fitted into the extended negotiations between these two parties seeking to reach an agreed settlement of their partnership affairs can be brought within that rule, it is unable to preceive.

The documents themselves contain no language from which it would be permissible to conclude that the parties were expecting to do something else than the terms thereof plainly expressed; in other words, in its essential nature and operation, these two, and all the other documents and writings, as found by the trial court, did not create anything which, in its essential nature and operation was a mortgage, but just the direct contrary; nor was there present on the face of them anything, except the passing of the absolute title to Morrison if Mackey's debts to him were not paid, as agreed upon, involved; it is, therefore, an inaccuracy to say, as appellant argues in his brief, that the debts owing by him to Morrison were expressly recognized as continuing and not to be released, etc.; but the appellant is bound by the court's contrary finding on the facts that the deed was not intended to be a mortgage, but was given only in final cancellation of his pre-existing debts.

The appellee, likewise, cites and relies upon the case of Wilcox v. Tennant, 13 Tex.Civ.App. 220, 35 S.W. 865 (writ ref.), urging that a reading of the opinion therein will readily show that 'Wilcox was never released from any obligation resting upon him, but continued bound for all of his indebtedness.' His brief goes further with this added interpretation of the meaning of that holding: 'The court simply applied the rule that a mortgagor cannot, at the outset, deposit his warranty deed with a mortgagee, and contemporaneously agree that, if he does not pay his debt, the deed shall be delivered and become absolute, and that the parties, by merely stating that the transaction is a conditional sale, cannot alter the true character of the transaction.' This Court approves such interpretation of the meaning of the Wilcox v. Tannant holding.

Appellee cites and relies upon a great number of other authorities, among which are these: Moore v. Beverlin, 186 Okl. 620, 99 P.2d 886, 887; Burnett v. Continental, etc., Tex.Civ.App., 191 S.W. 172 (no writ) cited by Com.App. in Neal v. Pickett, 280 S.W. 748; Baldwin v. American, etc., 76 Cal.App. 80, 243 P. 710; Ruden v. Kirby, 59 S.D. 631, 241 N.W. 791; Ravnaas v. Andrich, 60 S.D. 281, 244 N.W. 361;, In re Jones, D.C., 1938, 23 F.Supp. 10; 35 Am.Bankr.Rep., N.S., 490; Hutchings v. Terrace, etc., Mo., 175 S.W. 905; In re Eisele, 7 Cir., 1936, 82 F.2d 309; 31 Am.Bankr.Rep., N.S., 153; Alexander v. Phillips, etc., 10 Cir., 130 F.2d 593; Hawkins v. Everts, Tex.Civ.App., 91 S.W.2d 1086, (writ ref.); 13 Corpus Juris. Sec. 783, p. 686, 17 C.J.S., Contracts, § 504, p. 1069; 10 Tex.Jur., Sec. 239, p. 418; Edwards v. Atkinson, 14 Tex. 373; Garrison v. Cooke, 96 Tex. 228, 72 S.W. 54; Presidio Mining Co. v. Bullis, 68 Tex. 581, 4 S.W. 860; Killough v. Lee, 2 Tex.Civ.App. 260, 21 S.W. 970 (no writ); Note 11 A.L.R. 432, citing McKenzie v. Coslett, 28 Nev. 65, 78 P. 976; Miller v. Butterfield, 79 Cal. 62, 21 P. 543.

Upon the cause as a whole, this Court concludes that the findings by the trial court, based upon the quoted instruments, themselves, along with the conduct of the parties thereunder,-to the effect that neither appellant nor appellee intended these instruments to constitute a mortgage; but, on the other hand, intended them to effect a conditional sale of appellant's interest in these properties, in cancellation of his indebtedness and obligations to the appellee, arising out of the joint venture,-are binding and conclusive upon the appellant; further, that the court's conclusions of law, based upon such fact...