Green v. Gomez , 1961 Tex. App. LEXIS 1790 ( 1961 )

WALTER, Justice.

Walter Green and his wife, Louisa Green, filed suit against V. A. Gomez and his wife, Belle Gomez, seeking to cancel one deed from the Greens to V. A. Gomez, dated May 15, 1955, and one deed from V. A. Gomez to his wife, Belle Gomez, dated November 2, 1956. The court granted Gomez’s motion for an instructed verdict and entered a judgment that the plaintiffs Green take nothing.

The Greens have appealed from such judgment contending the court erred in entering a judgment that they take nothing because there was some evidence of probative value that the Greens and Gomez intended that the deed from the Greens to Gomez should be considered as a mortgage given as security for a debt and not as a conveyance.

An issue of fact was raised if, discarding all adverse evidence, and giving credit to all evidence favorable to the Greens, and indulging every legitimate conclusion favorable to the Greens which might have been drawn from the facts proved, a jury might have found in their favor. Olds v. Traylor, Tex.Civ.App., 180 S.W.2d 511 (Writ. Ref.); 41-B Tex.Jur. 226, § 191.

Walter Green testified substantially as follows: that in December, 1943, he purchased the property in dispute from V. A. Gomez for a total consideration of $1,500, paying $400 cash and executing a vendor’s lien note for $1,100, payable in monthly installments; that after he purchased the property he erected a tile building on said land at a cost of $3,000, another building that cost him $1,800 and added a room that cost him $500; that he had resided on said property with his wife and son since he purchased it from Gomez; that on said property his wife operates a beauty shop and he has a barbecue cafe; that he cannot read nor write, but can write his name; that on May 18, 1955, he and his wife executed a note for $850 payable to Gomez; that contemporaneously with the execution and delivery of the $850 note he and his wife delivered to Gomez a deed to the property in dispute that recited a consideration of $850; that Gomez instructed him to go to Mr. Thomas’ office and Mr. Thomas would fix up a mortgage; that he went to Mr. Thomas’ office and he fixed it up; (emphasis ours.) that he did not know whether he was signing a mortgage or a deed; that said property was worth $10,000 in 1955; that he did not intend to sell Gomez his property when he delivered the deed. When asked, “What did you intend to do, if anything ?”, he answered, "Well, I was just — he was loaning me the money on it. What I would call — he called it a mortgage.” (Emphasis ours.) When asked, “What was the reason, if any, that you gave him this deed, Walter?”, he answered, “For — he—holding it — he claimed he was holding the deed for — until we paid him the $850.00.”; that he has paid $400 on the $850 note; that he owns and claims said property and was living on said property at the time he executed the deed and the note and has lived there ever since.

Louisa Green testified the property was worth $10,000 and that she did not intend to sell the place to Gomez when she signed the deed. A real estate agent testified said property was worth $4,245 in 1955.

V. A. Gomez testified substantially as follows : that he purchased the property in dispute from the Greens for $850 and thinks he paid them off in folding money and cash; that said property was worth $3,000 or $3,-500 on May 18, 1955; that on or about May 18,1955, Green needed money to open a cafe in one of Gomez’s buildings and that he let him had $850 and Green made a note for it; that he knew the Greens occupied said property as their home. It is apparent from V. A. Gomez’s testimony that he knew said property was the Green’s homestead.

The controlling question in this case is with what intent did Green and his wife execute said deed and with what intent did Gomez receive it. If said general warranty deed was delivered by the Greens to Gomez and Gomez received it with the intention and understanding that it should only be a security for a debt, the jury would have been justified in finding that the parties intended for said deed to be a mortgage. Davis v. Brewster, 59 Tex. 93. We find from all the facts and circumstances in evidence there was some evidence of probative value that the Greens intended the deed to be a mortgage and that Gomez accepted it as such. Young v. Blain, Tex.Com.App., 245 S.W. 65.

The Greens pleaded that Belle Gomez was not a bona fide purchaser and did not pay a valuable consideration for such property. They also pleaded that she had notice that her husband did not have title to such property. Mrs. Gomez testified substantially as follows: that she did not remember that her husband deeded her the Green property; that she did not remember whether her husband ever told her that he had put the Green property in her name; that she knew that the Green property was in her name, but did not remember when she first found out that such property was in her name; that she did not remember if her husband gave her the property or if she paid him for it. She was asked three times if she were claiming the property and the first time she answered, “Let me think awhile.”, the second time she answered, “I didn’t say that.”, and the third time she answered, “Well, yes.”; that she had never seen the deed and that her husband managed their affairs.

Article 4619, Vernon’s Ann.Civ.St., in effect makes the husband the agent of his wife in so far as the management, control and disposition of the community property is concerned. Knowledge of the husband as to matters concerning community property would, therefore, be knowledge of the wife. We hold that Mrs. Gomez was charged with knowledge of the title of the Greens’ property because her husband’s knowledge was imputable to her.

Judgment is reversed and the cause is remanded.