Perry v. Long

• Court: Texas Court of Appeals
• Writing for the Court: Young
• Citation: Perry v. Long, 222 S.W.2d 460 (Tex. App. 1949)
• Decision Date: 25 February 1949
• Docket Number: No. 13959.,13959.
• Parties: PERRY et al. v. LONG et al.

222 S.W.2d 460

PERRY et al. v. LONG et al.

No. 13959.

Court of Civil Appeals of Texas. Dallas.

February 25, 1949.

Rehearing Denied April 22, 1949.

Appeal from District Court, Dallas County; H. W. Fillmore, Judge.

Action for title and possession of realty by Lillie B. Perry and others against Thurman Long and others. The defendants filed a cross-action. Pearl Odom and others intervened. From the judgment, the plaintiffs appeal.

Affirmed.

Helen M. Viglini, Dallas, for appellants.

W. J. Durham, Dallas, for appellees.

YOUNG, Justice.

The controversy here involves ownership of church property; the controlling issue centering upon whether a certain warranty deed conveyed absolute title as it appeared to do, or, on the other hand, was intended as a mortgage. Upon a jury trial with findings favorable to defendants on their cross-action, (original plaintiffs having taken a nonsuit) judgment was entered accordingly with result of this appeal.

Omitting formal parts, jury issues and answers were as follows: "(1) Do you find from the evidence that at the time of the execution of the deed from Woodrow Long to Settie Long, and others named in said deed, which is in evidence before you as Cross-Plaintiff's Exhibit No. 13, the parties named in said instrument intended by the execution and delivery of the same that same should constitute a mortgage in fact given as security for funds which the members of Martin Spiritualist Temple had paid on said property or on the construction of the building thereon, if any, as the word mortgage has been heretofore explained to you in this charge? Answer: Yes. (2) Find from a preponderance of the evidence the amount of money, if any, the membership of Martin Spiritualist Temple put into the improvements on Lots Eleven (11) and Twelve (12), in Block E/2488, of Alex Camp's Subdivision to the City of Dallas? Answer: $3825.68." In connection with these issues, the court's charge to the jury included the following instructions: "(1) That the instrument executed by Woodrow Long on September 13th, 1945, which was introduced in evidence before you, is, on its face, a conveyance in fee simple, and vests title to the property involved herein in the trustees named in said deed, in trust for the benefit of Martin Spiritualist Temple, unless the parties to said instrument intended same as a mortgage. (2) In this connection you are instructed that a mortgage as distinguished from an absolute deed of conveyance may result from the intention of the parties to the transaction at the time said transaction is consummated that the fee simple title should not pass, but that the deed of conveyance executed and delivered by the grantor was intended by both parties not as an absolute deed of conveyance, but as an instrument the only purpose of which was to create a lien upon the property described therein to secure the grantee and their beneficiaries for money theretofore advanced by such beneficiaries and used by grantor as part payment for the improvements made or to be made thereon. (3) You are further instructed that the burden of proof is upon Settie Long and Thurman Long, as administratrix and administrator, respectively, and individually, to show by a preponderance of the evidence that at the very time Woodrow Long executed and delivered this deed it was intended by Woodrow Long and the persons named in deed in question as trustees to be a mortgage as distinguished from an absolute deed of conveyance."

The trial petition of appellants (second amended original) is not in the transcript but we assume from the judgment and other portions of the record that the litigation was initiated by Lillie B. Perry, Gertrude Webster, Raymond Webster and two others not appealing, as trustees on behalf of Martin Spiritualist Temple and its membership, for title and possession of the property just described; defendants Thurman Long and Settie Long, sued individually and as administrator and administratrix of the estate of Woodrow Long, answering by plea of not guilty, admitting execution of the deed by Woodrow Long (Exhibit 13 in Issue 1) to certain trustees of Martin Spiritualist Temple, but alleging that such deed was in fact a mortgage to secure advancements and contributions made by church members for the construction of a church building on lots described in Issue 2. A plea of intervention was also filed by Pearl Odom, Myrtle Stewart, Winnie Wilson, Ellis Newsome and Settie Long, styling themselves "the duly and legally elected and acting directors of the Martin Spiritualist Temple, a corporation," and, in its behalf, adopting generally the allegations of defendants' cross-action just mentioned and seeking to oust appellants from the same property by way of injunction. During the trial, after original plaintiffs had rested their case, defendants moved for an instructed verdict, and before a ruling of the court thereon, Perry and associates asked for leave to nonsuit, which was granted; the case then going forward on defendants' cross-action answered by plaintiffs' first supplemental petition. The court's judgment, before us for review, thereafter rendered on above jury issues and answers, declared the warranty deed of September 13, 1945, executed by Woodrow Long, to be a mortgage in fact; that Settie and Thurman Long as administrators of the estate of Woodrow Long were owners in fee of the church site and property in question and entitled to possession thereof; that Martin Spiritualist Temple, through its trustees, should recover from Settie and Thurman Long, in their respective capacities, the sum of $3,825.68, being the amount contributed by the membership in construction of the church building located on said Lots 11 and 12, together with $200 paid on a certain piano. Interveners were denied relief and all relief not specifically granted in the judgment was denied to all parties.

Appellees may be hereafter referred to as cross-plaintiffs and appellants as cross-defendants; and the latter's fourteen points of appeal can be further summarized: (1) Complaining of the trial court's treatment of their amended motion for new trial, in that (a) they were denied the opportunity of presenting same in open court, (b) the court's refusal to exercise a discretion in the matter of overruling it, and (c) said motion was overruled pro forma without hearing or consideration; (2) error in refusing to grant their motion for an instructed verdict; (3) in refusing their request for instructions relative to definition of a deed, a mortgage, and with respect to the quality and amount of proof necessary to affix the character of a mortgage to a deed absolute in form; (4) error in admission of appellees' Exhibit 1, a written instrument; (5) the jury answer to Issue 1 was based on inadmissible and insufficient testimony also against the great weight and preponderance of testimony; (6) the adduced testimony being as susceptible of a finding that the instrument in question was not a mortgage as that it was, the presumption of law that said writing was what it showed on its face to be, a deed, should have prevailed; (7) refusal of the court to grant a new trial for newly discovered evidence.

It is readily apparent that the foregoing litigation is between rival factions of the particular church, their differences becoming acute following the death in January 1946 of Woodrow Long, their pastor or leader.

On February 15, 1944, Long had purchased the two lots on which stood a small building which the church membership appears to have used as a place of meeting, pending accumulation of funds for a permanent structure. The consideration was $800 cash paid by Long and execution of two monthly installment notes, one for $1,250 payable to Dillie B. Madison, and paid off in 1944; the other for $2,750 to Mrs. W. V. Champion, the unpaid balance of which was transferred to Settie Long, appellee and mother of Woodrow Long, after his death. Funds sufficient for starting construction of a building on the lots were raised by the middle of 1945 and contract let, when, on September 13, Woodrow Long executed his warranty deed conveying above property to "Settie Long, Raymond Webster, Winnie Wilson, Pearl Odie (Odom), Ellis Newsome, L. E. Perry, Gertrude Webster, Trustees of the Martin Spiritualist Temple, their successors and assigns" for what was recited as "Ten & no/100 ($10.00) Dollars and other good and valuable consideration," the instrument being filed for record the following day.

Appellees pled at length in their cross-action the facts reflected in Issue 1 of the charge, viz.: "That together with Long's execution of the described deed, there was an agreement between such grantor and grantees, trustees of Martin Spiritualist Temple, that he as owner of the property would proceed to erect a church building thereon, the members contributing whatever amounts they were able to raise in the construction, Long to furnish any necessary balance of funds; that upon completion of the building Long would sell the property to the membership at its face value, giving them credit for all contributions made, and, if they did not choose to purchase, that he would reimburse them in full; in the meanwhile, as security for amounts put into the construction by members, the deed of September 13 was executed by Long and delivered to the named trustees, the latter group acquiescing in the transaction; that appellants were ready, willing and able to perform the agreement, appellants however now having repudiated it, claiming fee simple title under aforesaid deed.

In several points, appellants first complain that the order on the motion for new trial was not signed by the trial judge in open court in the Dallas County Courthouse and that the judge did not there permit her to argue and personally present it. The record discloses that Judge Fillmore, who sat by assignment of the Presiding Judge of the Administrative Judicial District for Judge Thornton in the...