E. S. Mann's Ex'x v. Falcon

• Decision Date: 01 January 1860
• Citation: 25 Tex. 271
• Parties: E. S. MANN'S EXECUTRIX AND OTHERS v. B. M. FALCON.
• Court: Texas Supreme Court

25 Tex. 271

E. S. MANN'S EXECUTRIX AND OTHERS

v.B. M. FALCON.

Supreme Court of Texas.

1860.

This court will not revise exceptions taken to interrogatories because they are leading, if they were not brought to the attention of the court, and no ruling made upon them.

The doctrine that parol evidence is admissible to prove that a deed, absolute upon its face, was made and intended as a security for a debt, and is therefore a mortgage, is well settled.

It is competent for the defendant in an action of trespass to try title, under the plea of “not guilty,” to prove as a matter of defense, that his deed to the plaintiff, and on which the latter relies, although absolute on its face, was in fact a mortgage; he need not plead it specially, 3 Tex. 60;11 Tex. 662;14 Tex. 142;ante, 194.

The doctrine laid down in the case of Duty v. Graham, 12 Tex. 427, that the mortgagor of real estate remains the real owner of the land, and entitled to the possession after as before the breach of the condition of defeasance, and the mortgagee cannot maintain an action of trespass to try title to dispossess him, is reaffirmed in this case. 12 Tex. 427;23 Tex. 561.

This case is distinguished from the case of Hannay v. Thompson, 14 Tex. 142. 14 Tex. 142.

If the defendant, in an action of trespass to try title, defeats a recovery by showing that his deed under which the plaintiff claims, is a mortgage, the court will not render a decree of foreclosure, if the petition is framed solely with the view to a recovery of the premises, and does not ask that alternate relief. 3 Tex. 305;12 Tex. 327;19 Tex. 406;21 Tex. 508.

In such case the plaintiff fails to recover upon the case stated. and may have his action upon the mortgage.

The notice of title given by possession of land, is equivalent to the constructive notice afforded by the registration of a deed; and where a deed to land had been made which was absolute on its face, and duly recorded, but was in fact intended as a mortgage, the grantor remaining in possession of the premises: Held, that a subsequent purchaser from the grantee (mortgagee) of the land, to recover the same from the grantor of his vendor, must prove that he purchased for a valuable consideration, and without notice that the deed from the defendant was in fact a mortgage. 23 Tex. 443;26 Tex. 331.

See the facts of this case for the application of the above principle, and where it was determined that the purchaser from the mortgagee could not be deemed in law to be an innocent purchaser.

APPEAL from Nueces. Tried below before William G. Hale, Esq., special judge agreed upon by the parties.

This was an action of trespass to try title, brought by Esther S. Mann, executrix of the last will of William Mann, deceased, and others, against Blas M. Falcon, for the recovery of five and one-half leagues of land; petition filed August 7th, 1856. The petition is in the usual form of such actions, the plaintiffs alleging title in themselves to the tract of land; that the defendant had entered upon and ejected the plaintiffs therefrom, and committed divers trespasses thereon; alleging the value of the fruits and profits to be of the value of ten thousand dollars; and praying for a judgment “for their damages aforesaid, mesne profits, costs of suit, and that they may recover possession of the said parcel of land, with the appurtenances, and for general relief.”

The usual indorsement prescribed by the statute, that “the action is brought as well to try title, as for damage,” was made on the petition. The defendant pleaded “not guilty,” and the statute of limitations.

The plaintiffs introduced the original title to the land from the government, dated September the 27th, 1834, to the defendant; also a deed from the defendant to William Mann and Henry L. Kinney, dated 10th day of September, 1845, which was duly recorded in the year 1847; and subsequent conveyances from Kinney to Clopton, and from Clopton to the co-plaintiffs, with Mann's executrix. The defendant offered parol evidence to prove that the conveyance to Mann and Kinney was not absolute, but was a mortgage; to which the plaintiffs objected, because it was irrelevant and inadmissible under the pleadings, which objections were overruled, and the testimony was admitted.

The defendant introduced the evidence to show that the land was conveyed and title papers delivered at the date of Falcon's deed to Mann and Kinney, as a security for goods delivered and cash advanced by them to him, amounting to $500, and that they had from time to time since recognized the transaction as a mortgage. The plaintiff introduced evidence tending to prove that the transaction was a sale to them of the land by Falcon for a valuable consideration. Falcon was the only person who had possessed the land; was on it when the grant was made, resided on it at intervals, though his possession was disturbed by the revolution in 1836, and afterwards by the Indians, was on it at the institution of the suit, and occupied and made improvements upon the tract of land in the year 1853, upon which he continued to reside thereafter. Kinney conveyed to Clopton in the year 1854; the subsequent conveyances from and under Clopton to the co-plaintiffs with Mann's executrix, were made in 1855.

The plaintiffs attached to cross-interrogatories by them propounded to the defendant's witnesses, objections in writing to certain interrogatories in chief, because they were leading. The answers to them were read, and it does not appear from the record that the objections were presented to or ruled on by the court.

The court charged the jury as to the facts which would constitute a mortgage, and instructed them that if they found that it was a mortgage, the plaintiff, Esther S. Mann, executrix, etc., cannot recover in this action, and to find against her; and whether the other plaintiffs can recover the other undivided half of the land will depend upon their having shown that they purchased their interest in the land for a valuable consideration, and without notice that the deed from the defendant was in fact a mortgage.

It was proved that Clopton had notice that Falcon claimed the land before he conveyed to Rayne, who conveyed afterwards to the co-plaintiffs with E. S. Mann.

The court charged the jury “that there can be no recovery by the plaintiffs of the debt supposed to be secured by the mortgage, because the action is not brought for, and cannot be used for that purpose.”

The jury returned a verdict for the defendant, and judgment was rendered accordingly.

The appellants assigned as error the overruling by the court of their objections to the evidence of the defendant; permitting the defendant to adduce parol evidence to show that the deed from the defendant was a mortgage; and not giving to the...