McMurry v. Mercer
| Decision Date | 02 June 1934 |
| Docket Number | No. 11464.,11464. |
| Citation | 73 S.W.2d 1087 |
| Parties | McMURRY et al. v. MERCER. |
| Court | Texas Court of Appeals |
Appeal from District Court, Rockwall County; Joel R. Bond, Judge.
Suits by Sam McMurry and others against Fred Mercer, wherein defendant files a cross-action. From a judgment, plaintiffs appeal and defendant files cross-assignments of error.
Affirmed in part, reversed and rendered in part, and remanded with instructions.
Mike Reinhardt, of Royse City, and A. H. Mount, of Dallas, for appellants.
Clark, Harrell & Clark, of Greenville, for appellee.
Sam McMurry, Clarence McMurry, and Barton McMurry, three of the eight surviving children and heirs at law of S. H. McMurry (who died in 1912) and Mrs. S. H. McMurry (who died May 16, 1932), filed separate suits, in form trespass to try title, against Fred Mercer, each seeking recovery of a one-sixteenth undivided interest in 263.8 acres of land located in Rockwall county, owned by Mr. and Mrs. S. H. McMurry at the time of the death of S. H. McMurry, used and occupied by Mrs. McMurry until the date of her death.
Defendant Mercer answered by general denial, plea of not guilty, and, in a cross-action, brought in the other five McMurry heirs, alleging the undivided interest in the land that he owned, the interest therein owned by each of the heirs, and sought partition. Thereafter, by amendments, plaintiffs changed the nature of their suits to actions for the cancellation of certain deeds, absolute in form, alleged to have been executed as mortgages to secure the payment of debts due Mercer. These actions being consolidated, the original plaintiffs and the other McMurry heirs, answering the cross-action of Mercer, denied that he owned any interest in the lands, therefore was not entitled to have the same partitioned; that his claim to 20 acres of the land is based upon a deed absolute in form, executed by Mrs. S. H. McMurry (from whom the Mercer heirs inherited), adjudged by the district court of Rockwall county to be a mortgage given to secure an indebtedness of $300 (reference being made to the report of the case of Mercer v. McMurry [Tex. Civ. App.] 229 S. W. 699); and that said debt and lien, as established by said judgment, were barred by the statutes of limitation, praying that Mercer take nothing by his cross-action, etc.
In a supplemental answer, Mercer denied these allegations, and specially answering said that the judgment referred to (in Mercer v. McMurry, supra) was conditional, in that, it provided that only upon payment of $300 by Mrs. McMurry should title to the 20 acres of land vest in her, and as she failed to make the payment, his title became absolute; further answering, Mercer alleged that, if mistaken as to the status of the title, nevertheless he had a valid and subsisting lien on the 20 acres to secure the payment of his claim of $300, and interest, from the date of the judgment (October 28, 1919), praying judgment for debt and foreclosure of the lien. Answering the plea of limitation, Mercer alleged that his claim was not barred, nor had the statute begun to run, in that, the heirs of Mrs. McMurry are not entitled to the land until his claim is paid, even though it should be held that said judgment is not conditional.
In this status of the pleadings, the consolidated cause was tried to a jury and, in answer to submitted issues, they found that the deeds executed by Sam, Barton, and Clarence McMurry, each conveying to Mercer an undivided one-sixteenth interest in the lands, were intended, by all parties, as mortgages; that is, as security for debts.
Plaintiffs moved for judgment in accordance with the verdict of the jury, and defendant moved for judgment, non obstante veredicto, contending that, under the law and undisputed facts, he was entitled to recover the undivided interest in the land, as set out in his cross-action. The court formally denied each motion, but proceeded to enter judgment in favor of Sam McMurry, canceling his deed to Mercer, conditioned upon payment of $300 into court for the benefit of Mercer, within 20 days; also rendered judgment in favor of the McMurry heirs, jointly for the recovery of the 20 acres undivided interest involved in Mercer v. McMurry (Tex. Civ. App.) 229 S. W. 699, conditioned upon payment of $300 into court within 20 days, for the benefit of Mercer; further adjudging that plaintiffs Barton McMurry and Clarence McMurry take nothing, to which all parties excepted and gave notice of appeal; appeal being perfected by plaintiffs, and defendant having filed cross-assignments of error, the contention of each party is properly presented for consideration.
The deeds sought to be converted into mortgages are absolute in form. The one executed by Clarence McMurry, dated January 13, 1913, recites the following consideration: "$704 cash in hand paid, the receipt of which is hereby acknowledged; and $100 to be made in deferred payments as follows: $35 on January 1, 1915; $35 on January 1, 1916; and $30 on January 1, 1917, as evidenced by three notes executed by Fred Mercer, payable to Clarence McMurry, with ten per cent interest from date." The deed executed by Sam McMurry, dated November 20, 1913, recites the following consideration: "$400 cash in hand paid, the receipt of which is hereby acknowledged, and $200 to be made in deferred payments as follows: Note No. 1 for $100, due Jan. 15, 1915; Note No. 2 for $100 due Jan. 15, 1916; with 8% interest from Jan. 1, 1914, and the vendor's lien is hereby retained in favor of the said Sam McMurry, or order, against the hereinafter described land, until the said notes are fully paid, when this deed shall become absolute." The deed executed by Barton McMurry, dated July 2, 1915, recites the following consideration: "The sum of $850, to be paid by Fred Mercer as follows: all cash in hand paid, the receipt of which is hereby acknowledged."
At the same time and as a part of each transaction, Mercer obligated himself in writing to reconvey the land, at the option of the grantor, on payment of an agreed sum by a named date. These option agreements are in legal effect the same, varying in dates, names, and amounts. The one in favor of Sam McMurry reads:
Appellants contend that the court erred in not rendering judgment in favor of Barton and Clarence McMurry, insisting that there was substantial evidence in support of the jury findings, to the effect that the deeds were intended as mortgages. Appellee counters with the proposition that the court committed no error in the respect mentioned, in that, the deeds and accompanying option agreements are plain, unambiguous, conclusive of the contracts between the parties, hence cannot be varied, added to, or contradicted by parol evidence, and, in a cross-assignment, for the same reason, appellee contends that the court erred in failing to render judgment in his favor against Sam McMurry also.
It appears that, in the deeds executed by Clarence McMurry and Sam McMurry, in addition to the cash consideration recited, Mercer executed certain promissory notes, evidencing deferred payments; also that, as part consideration in each instance, Mercer agreed in writing to reconvey the property at the option of the grantor on payment of an agreed price by a named date. The notes executed by Mercer, payable to Clarence and Sam McMurry, representing the unpaid consideration, and the option agreement executed at the same time, obligating Mercer to reconvey on terms specified, constituted parts of the consideration for the conveyances, are contractual in nature, unambiguous in terms, not attributable to either fraud, accident, or mistake, clearly evidencing the intention of the parties, and cannot, in our opinion, be varied, contradicted, or added to by parol evidence.
A similar situation was presented in Mann v. Wright (Tex. Civ. App.) 269 S. W. 222, 224. In disposing of the question, the court used the following language in point: "We think that the instrument in question being in form a deed, and that the consideration named in said deed is contractual, and there being no ambiguity in the instrument or its terms, parol evidence should not have been admitted to vary or explain its terms or the intention of the parties in executing it, but that it was the duty of the trial court to have construed and hence to have instructed a verdict in favor of defendants." The rule was also announced by the Supreme Court, in Kahn v. Kahn, 94 Tex. 114, 119, 58 S. W. 825, 827, as follows:
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