Ullman v. Devereux

• Decision Date: 18 May 1907
• Citation: 102 S.W. 1163
• Parties: ULLMAN v. DEVEREUX.
• Court: Texas Court of Appeals

102 S.W. 1163

ULLMAN v. DEVEREUX.

Court of Civil Appeals of Texas.

May 18, 1907.

Rehearing Denied June 15, 1907.

Appeal from District Court, Wise County; J. W. Patterson, Judge.

Action by A. Devereux against J. Ullman. From a judgment for plaintiff, defendant appeals. Affirmed.

R. E. Carswell, for appellant. Bullock & Basham, for appellee.

Statement.

STEPHENS, J.

This is appellant's second appeal. See Ullman v. Devereux, 93 S. W. 472. The case made on the last trial was not materially different from that made on the first, the nature of which is disclosed in the opinion above cited, and the result was practically the same.

Conclusions.

Appellant's first proposition is thus stated in his brief: "The real litigated issue in the case was whether or not appellee had, by his agreement with appellant to surrender the land in settlement of the debt, estopped himself from any further claims as to the land, without regard to whether he consented to the sale or not. The charge complained of excludes that issue and submits the case upon an immaterial one."

That the deed to appellant was but a mortgage to secure a loan of $500 does not admit of any controversy. It is equally certain that it remained a mortgage, notwithstanding the subsequent oral agreement testified to by him that he was to take the land for the debt and interest thereon as specified in the note, which, by the undisputed evidence, was usurious. That the oral agreement relied upon by appellant was ineffectual, see Keller v. Kirby, 79 S. W. 82, 34 Tex. Civ. App. 404, and cases there cited. This brings us to the question of the alleged "real litigated issue in the case"—the estoppel claimed by appellant—but we fail to find any evidence whatever of estoppel. This was only a suit for damages in which appellee sought to recover the difference between the amount of the debt due appellant and the value of the land at the time appellant, treating it as his own, disposed of it, or the difference between said debt and the amount appellant had realized from the sale of the land. No reason is perceived why in such a suit appellant would not have an adequate remedy for the recovery of any sums of money he may have expended for taxes, improvements, and the like on the faith of the oral agreement, especially since the aggregate of the sums alleged by him was less than the sum realized by him from the rent and sale of the land after deducting therefrom the amount of his original debt.

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