Nagle v. Simmank

• Decision Date: 09 February 1909
• Citation: 116 S.W. 862
• Parties: NAGLE et al. v. SIMMANK et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

116 S.W. 862

NAGLE et al. v. SIMMANK et al.^†

Court of Civil Appeals of Texas.

February 9, 1909.

On Rehearing, March 11, 1909.

Appeal from District Court, Austin County; L. W. Moore, Judge.

Action by J. E. Simmank and others against Walter Nagle and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Bell, Johnson, Matthaei & Thompson and C. G. Krueger, for appellants. Brown & Lane, for appellees.

McMEANS, J.

J. E. Simmank brought this suit against appellants to set aside a deed executed by himself and wife conveying to Walter Nagle a lot of land in the town of Shelby. He alleged in his petition that, being indebted to the said Nagle in the sum of $300 for borrowed money, he and his wife, Auguste Simmank, were induced by Nagle to execute, as security for said debt, a certain instrument of writing conveying said lot, which was in the form of a deed, but which was intended, and was understood by all the parties at the time, to be a mortgage. He further alleged that the lot in question at the time of the execution and delivery of the instrument was his business homestead, and had continued to be such up to the time of trial, and that the said mortgage was void, but that the same cast a cloud upon his title. He prayed for judgment for the title and possession of the lot, and that the instrument as a cloud upon his title be canceled. Other allegations of the petition need not be noticed, as it is deemed, in view of the disposition we make of the case, that what we have above stated is sufficient to an understanding of this opinion. Mrs. Simmank intervened, making substantially the same allegations as those contained in the petition of her husband. Defendants answered by general denial, "not guilty," the statute of limitations of three years, estoppel and laches, and purchase of the lot by defendant Nagle from the plaintiff and intervener. They also demurred to the plea of intervention of Mrs. Simmank. The case was tried before a jury, and, upon a verdict and judgment in favor of plaintiffs, defendants have appealed.

The evidence warranted the jury in finding that the instrument was a mortgage, and that the land in question constituted the business homestead of appellees at the time the mortgage was executed and delivered, and continuously since then up to the time of the trial. It does not appear that the general demurrer urged by appellants to the plea of intervention was called to the attention of, or acted upon by, the trial court, and there is therefore no basis for appellants' first assignment of error, which complains that the court erred in not sustaining it.

By the second assignment appellants complain of the action of the court in permitting plaintiff and intervener to introduce evidence of a verbal contract varying the terms of the written deed. The evidence objected to was to the effect that plaintiff and intervener thought they were only giving a mortgage on the property, and that it was agreed and understood, if the debt was paid, the defendant Nagle would reconvey the property. The proposition urged under this assignment is that a contemporaneous parol agreement is not admissible to vary the terms of a valid written instrument. That parol evidence as between parties is admissible to prove that a deed absolute on its face is security for debt and therefore a mortgage is no longer an open question in this state. Railway v. Jones, 82 Tex. 160, 17 S. W. 534; Miller v. Yturria, 69 Tex. 554, 7 S. W. 206; McLean v. Ellis, 79 Tex. 398, 15 S. W. 394. The assignment is overruled.

The court charged the jury: "* * * If the husband and Nagle intended to make an absolute deed to the property, yet, if the wife understood at the time she signed and acknowledged the deed that they had the right, as explained by the notary, upon the payment back of said sum of money, to have the deed to the property reconveying it back to them, you shall find for the plaintiff." It is complained that this part of the charge is upon the weight of the evidence, in that it assumes that the notary, at the time he took Mrs. Simmank's acknowledgment to the deed, explained to her that the property would be reconveyed by Nagle upon the payment of the sum borrowed by her husband from him. Both Mrs. Simmank and the notary, who appears to have no interest in the subject-matter, testified that such explanation was made to Mrs. Simmank by the notary when she signed and acknowledged the deed; and their testimony was undisputed. While it is true that the judge should not in his charge assume that a controverted fact has been proven, it is equally true that he may assume truth of evidence where the facts are undisputed. Bonner v. Green (Tex. Civ. App.) 24 S. W. 834; Wintz v. Morrison, 17 Tex. 387, 67 Am. Dec. 658; Railroad Co. v. Stewart, 57 Tex. 166. There was no error in the charge on the particular complained of, and the assignment presenting the point is overruled.

The court charged the jury, in effect, that, if Simmank understood or...