Shelton v. Ector
| Decision Date | 25 January 1963 |
| Docket Number | No. 16098,16098 |
| Citation | 364 S.W.2d 425 |
| Parties | George L. SHELTON, Jr., et. al., Appellants, v. Theodore ECTOR et ux., Appellees. |
| Court | Texas Court of Appeals |
C. B. Bunkley, Jr., Dallas, for appellants.
Lefkowitz, Green, Ginsberg, Eades & Gilmore, Jack D. Eades, Dallas, for appellees.
Theodore Ector, and wife Doris Ector, brought this action in the nature of a trespass to try title suit against George L. Shelton, Jr., and Brady, J. Jones. Plaintiffs asserted that they were the owners in fee simple of a lot located in Dallas, Texas, and that, on January 11, 1957, they had executed and delivered a warranty deed to defendants conveying all of their title and interest in said land in controversy, subject to a lien to secure the payment of a debt in the principal sum of $2,750.00, which sum defendants had advanced and paid, and also the assumption of the unpaid balance of a first lien note. Plaintiffs then contended that said deed was executed with the understanding and intention of the parties thereto that the same should be a mortgage to secure the money loaned and advanced by defendants and was not intended to operate as a warranty deed. Plaintiffs further asserted that it was never intended between the parties that said deed, absolute upon its face, should pass title to the property and that plaintiffs executed said deed acting in complete reliance upon defendants verbal promise and assurance that the same was to serve only and solely as security for the debt created by the advances made to pay off pending debts of plaintiffs. Plaintiffs requested the court to set aside the deed and to construe the same as a mortgage.
Defendants answered with a plea of 'not guilty' and a specific denial of the allegations of intent concerning the deed. Defendants alleged that plaintiffs had, following the execution of said deed, executed two lease agreements on the property in question and had breached the terms of said agreements. By cross action, defendants asserted their title to the property in question as evidence by the warranty deed and sought judgment for the title and possession of same.
At the conclusion of the evidence the case was submitted to the jury on two special issues and in response thereto the jury found (1) that the warranty deed in question was intended by the parties to be a mortgage; and (2) that such mortgage was to secure a debt in the sum of $1,944.31. Defendants filed motion for judgment non obstante veredicto contending that there is no evidence, or that the evidence was insufficient, to support the jury's answer to the two special issues and furthermore that the deed could not be construed as a mortgage, as a matter of law. Such motion was duly overruled and judgment rendered upon the jury verdict for plaintiffs.
In view of the nature of appellants' points on appeal we deem it essential to briefly summarize the material testimony. The property involved had been owned by the family of Doris Ector, one of appellees, since 1881, and was partitioned to appellees in February 1954. Thereafter, in 1955, appellees borrowed $10,500.00, using the land as security and built a restaurant building on the property. Appellee Ector became involved in financial difficulties and sought the services of one J. H. Glenn, a real estate man, to aid him in finding someone from whom he could borrow money, using the property as collateral. Ector testified that Glenn referred him to appellants, Shelton and Jones, and that he contacted these two gentlemen seeking to borrow enough money to pay off approximately $2,500.00 in indebtedness which was apparently rather pressing. Ector, who is shown to have a fourth grade education, testified that during negotiations with appellants a sale of the property was not discussed but that appellants told him that it would be necessary to go to a title company and draw up papers turning over the property as security for a two-year loan, plus a $1,000.00 brokerage fee; that the only was this could be done was to transfer title to appellants, with a two-year option lease, so that they would know they were not going to get their money attorney met at the title company on January 11, 1957, and appellees signed the warranty deed. Ector did not receive any cash money from anyone at that time, but according to the closing statement of the title company the sum of $1,944.31 was advanced by appellants to the title company to be used in payment of appellees' obligations and closing expenses. The first lien loan balance of $9,407.78 was shown to have been assumed by appellants. No lease agreement was drawn up at that time although it was supposed to have been drawn up 'right away' according to Ector. The lease agreement was finally drawn up in the office of appellants' attorneys on January 28, 1957, and executed by Ector and his then partner, Hill, as lessees. This lease contained an option agreement to repurchase the property. Later a second lease, substantially identical to the first one, was executed on September 12, 1957, and also contained a repurchase agreement. Ector testified that he had not repaid the loan to appellants because they 'put him out before the two years' agreed upon had expired. Ector's wife, Doris Ector, also testified in substantial support of the testimony given by her husband.
The testimony of appellants, Shelton and Jones, and the witness Glenn, was in direct conflict in almost every detail with the testimony of Ector and his wife. Without detailing this testimony it is sufficient to say that all of these witnesses testified that the transaction was that of a sale and not a mortgage.
Appellants' points one and two, briefed together, assert that the trial court erred in overruling and denying appellants' motion for a judgment non obstante veredicto because the finding of the jury that the deed in question was intended to be a mortgage, and such mortgage was intended to secure a debt of $1,944.31, was 'so against the weight and preponderance of the evidence as to be manifestly unjust.' (Emphasis supplied.)
We are immediately confronted with the procedural question of the sufficiency of these points to properly raise the question of the adequacy of the testimony to support the jury's answers to the issues submitted. It is to be observed that appellants' points constitute an attempt to attack the action of the trial court in refusing to sustain their motion for judgment non obstante veredicto. These points do not question the failure or refusal of the trial court to overrule any assignment...
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