Ruffier v. Womack

• Decision Date: 30 April 1867
• Citation: 30 Tex. 332
• Parties: AUGUSTE RUFFIER ET UX. v. JOHN F. WOMACK.
• Court: Texas Supreme Court

30 Tex. 332

AUGUSTE RUFFIER ET UX.

v.JOHN F. WOMACK.

Supreme Court of Texas.

April, 1867.

Where a deed and another contract were executed, in reference to real estate, on the same day, they are to be construed together in order to determine whether the transaction was a conditional sale or a mortgage.

Where the transaction originated in the loan of money at usurious interest, the courts incline to a mortgage; and if the property remain in possession of the vendor, it is another circumstance to favor the same hypothesis.

If the contract be originally a mortgage, it remains a mortgage.

But parties are able to make conditional sales, and if such was their intention, such contracts will be upheld; and if there was a pre-existing debt, the question is, was it the intention of the parties to cancel that debt.

Where the evidence exists partly in writing and partly in parol, and there are facts connected with rents and interest, extensions of time for considerations, homestead, and continued possession, all that the court could do was to submit the issues to the jury upon the question of intention, with proper instructions as to the law of the case.

The true issue really is, does the relation of debtor and creditor still remain? And if the transaction was based upon a pre-existing debt or loan of money, it must clearly appear that such debt is extinguished, or it will be held that the new arrangement is a mere change of security. It is not enough that the debt is changed from one form to another.

Where there was error in the charge, the judgment will be reversed.

Where it is ascertained that the instruments and transaction are really a mortgage, the calculation of interest becomes easy.

APPEAL from Harrison. The case was tried before Hon. J. B. WILLIAMSON, one of the district judges.

The record in this case is voluminous, and the facts somewhat contradictory; but it is believed the following summary will be as satisfactory as any which can be given. The real issue was whether the whole transactions between the parties were in fact a mere security for money, or were they a conditional sale? And this was made to depend not upon the writings, but upon the proofs.

On the 2d February, 1862, Womack, appellee, instituted suit, in Harrison district court, for certain real estate in the city of Marshall, against the appellants.

The appellants plead not guilty, and afterwards amended by averring that, on the 8th September, 1859, they were the owners of the property in controversy, which was their homestead; that a judgment had been obtained against them, with a decree to sell the premises for its satisfaction; that, through one W. P. Hill, they procured one Slater to satisfy the judgment and take a transfer thereof to himself; that in consideration of the payment by Hill, as their agent, to Slater, of five per cent. a month on the amount paid by the latter on the judgment, he gave time for payment of the money for sixty days; that divers other sums were paid by Hill, as their agent, to Slater, for forbearance to enforce said judgment from the expiration of said sixty days until the 18th May, 1860; that at the last-mentioned day, in consideration of the payment by Hill of a portion of the principal debt and $400 for forbearance, the appellants were allowed an extension of time of payment until 1st February, 1861; that, to effect this agreement, appellants executed a deed of the premises to Slater; that the extension of payment was secured by an instrument executed by appellants, Hill and Slater. As the case turned upon the construction of this in strument, it is here copied:

+------------------------+
                ¦“THE STATE OF TEXAS,  ¦)¦
                +----------------------+-¦
                ¦County of Harrison.   ¦)¦
                +------------------------+
                

Article of agreement between Charles W. Slater, William Pinkney Hill, Auguste Ruffier, and his wife, all of said county, witnesseth: That whereas the said Ruffier and wife have, by their deed of this date, conveyed, in absolute sale and title, to the said Slater, the following property * *;

And whereas the consideration of said deed of conveyance was and is the payment, satisfaction, and discharge of the balance of $1,410.46 due and owing by said Ruffier and wife upon a certain judgment against them, in favor of Rawlins, Duncan & Co., rendered by the district court of Harrison county, on the 27th day of September, A. D. 1858, for $1,316.82 and costs of suit, which was affirmed with damages in the supreme court of Texas at Tyler, at April term, A. D. 1859, which said balance of said judgment was held and owned by said Slater;

And whereas the said Hill has from time to time paid parcel of money by way of loan and advancement to said Ruffier and wife, which were credited as payments upon the debt, interest, damages, and costs of said judgment, so as to reduce the same to the balance aforesaid; and whereas the said Slater is willing to sell and convey to the said Hill the said premises for and in consideration of the price and terms hereinafter set forth and for the tract hereinafter stated:

Now, therefore, in consideration of the premises and the sum of $5 to him paid, the receipt whereof is hereby acknowledged, and for the further consideration of $1,418.46, which the said ____ agrees to pay said Slater on or before the 1st day of February, A. D. 1861, the said Slater hereby binds himself, his heirs, executors, and administrators, to grant, sell, and convey unto the said Hill, his heirs, and assigns, all and singular the said tract or parcel of land, together with all and singular the improvements and appurtenances of the same, with this consideration, however, that if said sum of $1,418.46 is not paid on the 1st day of February, A. D. 1861, as aforesaid, this agreement is to be null, and of no effect whatever, and the said Slater is at liberty to dispose of said premises in any way he may deem proper; but if said money is paid, as aforesaid, then the said Slater, his heirs, executors, and administrators, will execute and deliver to said Hill, or any person he may appoint, an absolute quit-claim deed to said premises, to have and to hold the same in trust, that when the said Ruffier and wife shall pay to said Hill the said sum of $1,418.46, and the said sum of money paid and advanced by said Hill for the said Ruffier and wife, as aforesaid, with lawful interest, and said divers sums of money from the date of that advancement, then the said Hill, or whomsoever shall hold said trust, shall convey, by absolute quit-claim for title, the said premises to the said Ruffier and his wife, to be held by them forever in fee simple.

In witness whereof the parties to this agreement hereunto set their hands and seals, this the 18th day of May, A. D. 1860.

+--------------------------+
                ¦C. W. SLATER.     ¦[L. S.]¦
                +------------------+-------¦
                ¦W. P. HILL.       ¦[L. S.]¦
                +------------------+-------¦
                ¦A RUFFIER.        ¦[L. S.]¦
                +------------------+-------¦
                ¦JOHANNA RUFFIER.” ¦[L. S.]¦
                +--------------------------+
                

And also further averring, that on the 21st May, 1860, appellants conveyed the property in question to the appellee; and that, on the 2d February, 1861, Slater assigned to appellee all his interest in the instrument B. The answer further charges that, on said 2d February, 1861, appellee, in consideration of $480 paid by Hill, as appellant's agent, extended the time of the payment of said judgment until 1st January, 1862. The answer also sets up that the amounts so paid for forbearance were usurious; that in the aggregate they exceed in amount the said judgment; that appellee and Slater were partners in the sum advanced to pay off the judgment, and that they divided the sums paid for forbearance between them. It is also alleged that the appellee had notice of all Slater's transactions, and an offer is made to pay any sum which may be found to be due appellee, after deducting the usurious sums paid. Another amendment was filed, which charges that the deed of 18th May, 1860, by appellants to Slater, and the paper marked B, were one and the same transaction. That appellee was the owner of all the money paid by Slater for the transfer of the judgment. That all the sums paid by Hill went to the appellee, and that throughout Slater acted as appellee's agent.

The cause came on for trial at the spring term, 1866, and there were a general verdict and judgment for appellee for the property and damages. It was admitted that the appellants had derived title to the property in dispute from the government, and the deeds from appellants to Slater, and from him to appellee, were read in evidence. It was also proved that the rent of the premises, from 1st January, 1862, to the time of trial, was of the value of $300 a year in specie. The various payments charged in appellant's answer were proved by the witness Hill, as charged, who also swore that the payment of $400 to Slater at the execution of the instruments, on 18th May, 1860, and of $480 to appellee, were made to obtain extensions of time for payment of the judgment against appellants, and not for rent of the premises, and in effect that exhibit B was intended by the parties to be a mortgage.

On the contrary, Slater swore that the deed made by appellants to him, on 18th May, 1860, was in satisfaction and payment of the judgment. That the $400 then paid was for the rent of the property until 1st February, 1861, and he describes the manner in which the proper amount of rent to be paid was arrived at; and Slater and Wilson swore that the $480 paid by Hill to appellee, on 2d February, 1861, was for the rent of the property until 1st January, 1862; that Hill told appellee that he should have no further trouble about the matter, but should then have his money or the possession of the property; and that Hill also promised to give appellee a written instrument, showing the relation of landlord and tenant between him and appellants, which was not given in consequence of Hill...