Young v. Blain

• Decision Date: 22 November 1922
• Docket Number: (No. 330-3687.)
• Citation: 245 S.W. 65
• Parties: YOUNG et al. v. BLAIN.
• Court: Texas Supreme Court

Page 65

245 S.W. 65

YOUNG et al. v. BLAIN.

(No. 330-3687.)

Commission of Appeals of Texas, Section B.

November 22, 1922.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by W. R. Blain against Annie E. Young and husband. Judgment for plaintiff was affirmed by the Court of Civil Appeals (231 S. W. 851), and defendants bring error. Judgments of the district court and Court of Civil Appeals reversed, and cause remanded.

John M. Conley, of Beaumont, for plaintiffs in error.

W. R. Blain, of Beaumont, for defendant in error.

POWELL, J.

Counsel for plaintiffs in error, in his application for the writ of error herein, states the nature and result of this suit with commendable brevity and accuracy, as follows:

"This is a suit of trespass to try title brought in the Sixtieth judicial district court, Jefferson county, Tex., by W. R. Blain, as plaintiff, and against Annie E. Young and her husband, Walter Young, as defendants. The land affected in the suit is a strip 46 feet wide by 237 feet long out of the Thomas Dickerson 10-acre tract in the James Drake head-right in Jefferson county, Tex. The plaintiffs in error answered by general denial, a plea of not guilty, and specially alleged facts raising the issue that the deed under which the defendant in error, W. R. Blain, was claiming the land in question was, in fact, a mortgage.

"The cause was tried by the court with a jury, and, after the evidence had been introduced by all parties, defendant in error, W. R. Blain, asked for an instructed verdict, and the court granting said application instructed the jury to return a verdict for the defendant in error for the land described in his petition. The jury, in accordance with the said peremptory instruction, returned a verdict for the defendant in error, W. R. Blain, and judgment was entered accordingly.

"The plaintiffs in error excepted to the trial court's peremptory instruction in due season, and to the judgment entered in this cause, and filed their motion for a new trial in said trial court, and after the court had overruled said motion for a new trial they perfected their appeal to the Court of Civil Appeals for the Ninth Supreme Judicial District of Texas, at Beaumont."

The Court of Civil Appeals affirmed the judgment of the district court. See 231 S. W. 851.

The entire case depended upon the character of the instrument in question. If it was in fact a mortgage, although a deed in form, it was invalid because upon land admitted by all to be a part of the homestead of Mrs. Young, in use as such by her at the time the conveyance was executed and delivered. We come, then, to consider whether or not the character of the instrument mentioned aforesaid should have been submitted to a jury.

Applying the law to the facts of this case, we think the Court of Civil Appeals correct in its statement, as follows:

"That a deed, absolute on its face, may be shown by intention of the parties to be a security for debt or any financial risk, and therefore, in legal contemplation, a mortgage is well settled. The deed in the instant case being absolute on its face — a regular warranty deed — and appellants having pleaded that it was a mortgage, the burden was upon them to show by a preponderance of the evidence that same was intended by the parties to be a mortgage. Brewster v. Davis, 56 Tex. 478; Lowry v. Carter, 46 Tex. Civ. App. 488, 102 S. W. 930; Goodbar v. Bloom, 43 Tex. Civ. App. 434, 96 S. W. 657."

The Court of Civil Appeals then proceeds to make another correct statement of law, as follows:

"Where there is any dispute as to the facts, then the court should submit the matter to the jury."

Was there any evidence supporting the contention that the instrument was, in fact, a mortgage? Was that issue raised so as to require its submission to a jury?

In answering this question, the Court of Civil Appeals, in its analysis of the testimony on the issue involved, says:

"But Mrs. Young (Sawyer) nowhere in her testimony says that said deed was intended as a mortgage. In effect, she denies the execution of the deed, saying, `I can't explain to the court how I come to execute that deed, because I never executed nothing but this bond for Sawyer, and that is all that I ever signed, is that one paper.' She further testified `if the deed that they have introduced, dated the 17th of September, 1913 (the deed in question), from W. Sawyer et al. to C. W. Howth is claimed by Mr. Blain to be a deed that we executed to secure them on Mr. Sawyer's bond, I will state that I know nothing of that. They told me that it was a bond that I was signing, and that is all that I know.' It thus appears that appellants' allegations in the answer that the deed was a mortgage is not supported by the proof, and being the only question to be determined, under the pleadings, there was no error in the court's instructing the verdict."

The Court of Civil Appeals, in reaching its conclusion, just quoted, has singled out a few isolated expressions from the testimony of Annie E. Young in sustaining its position. Instead of doing that, the court should have looked to her testimony as a whole on that issue.

Mrs. Young did not deny the execution of this very instrument. She admits her signature to it, but said she could not read, and had relied upon the statement of Blain as to its contents. We do not think it is necessary to conclude from the portions of the testimony, which alone impressed the Court of Civil Appeals, that Mrs. Young denied the execution of the instrument. On the contrary, the jury may have concluded, on a consideration of her testimony as a whole, that she was only testifying that she knew nothing of it as an absolute deed.

But, even if there be an inconsistency in her testimony, the jury had the right to accept portions of it and reject other parts. It is their peculiar privilege to adjust inconsistencies in the evidence of a witness in case they develop.

Justice Stayton, in case of Davis v. Brewster, 59 Tex. 93, says that —

"Mutual intention of the parties at that time [of the delivery of the deed] must give character to the instrument."

See, also, Webb v. Burney, 70 Tex. 324, 7 S. W. 841.

In the instant case, there are only two people who know what the mutual intention of the parties was in closing this contract. Blain and Mrs. Young are the only witnesses. The notary public, Hartnett, an employee in Blain's office at the time, was not present when the final trade was made. He left when the question of using the land in the transaction was first broached. When he returned, Blain had already prepared the deed, and Hartnett merely took the usual acknowledgement thereto.

Now, what do Blain and Mrs. Young say about this issue of fact? We have carefully read the entire statement of facts, and we think it would be an unprofitable consumption of time to cull out, at any great length, various portions of the evidence of both these witnesses....