Hays v. Morris , 1918 Tex. App. LEXIS 667 ( 1918 )

It is insisted that the trial court erred when he overruled appellant's motion to render judgment in her favor on findings made by the jury. We agree he did, and therefore sustain the contention. Admittedly the title to the land was in appellant at the time she conveyed it to Mrs. Woodle. The findings of the jury (1) that the conveyance to Mrs. Woodle was intended to operate merely as security for a debt appellant owed her, and (2) that appellee knew it when he bought the land, required the rendition of a judgment in appellant's favor for the land, unless the effect of the finding in appellee's favor on the issue of limitation required judgment to be rendered for him; for the legal effect of the conveyance to Mrs. according to the findings, was to make her a mere mortgagee, and not the owner, of the land; and appellee, buying of her with notice that she had no estate in or title to it, occupied no better position with reference to the land than she did. McLemore v. Bickerstaff, 179 S.W. 536. The question therefore is: Should the court have given effect to the finding in appellee's favor on the issue of limitation and have rendered judgment for him as he did? It is clear enough in the light of the authorities that the question should be answered in the negative. Angel v. Simmonds, 7 Tex. Civ. App. 331 26 S.W. 910; Stafford v. Stafford,71 S.W. 984; Barbee v. Spivey, 32 S.W. 345; Snowden v. Rush, 69 Tex. 593,6 S.W. 767; Massie v. Meeks, 28 S.W. 44; Garner v. Black, 95 Tex. 125,65 S.W. 876. The case first cited above seems to be in point. There it appeared that Simmonds owned land in 1882 when he conveyed it to one Wood by an instrument in form a deed, but intended to operate as a mortgage to secure a debt Simmonds owed Wood. In 1884 Wood conveyed the land to Tate, who in 1885 conveyed it to Angel. Tate and Angel at the times, respectively, they bought, had notice of the fact that the deed to Wood was intended as a mortgage. With reference to a complaint made by Angel of the failure of the court to submit to the jury an issue he claimed the evidence made as to title in him by virtue of the statute of limitations, the court said:

"The evidence was conflicting as to whether the defendant Angel held continuous possession, for three years prior to the institution of the suit of the land in controversy, but we are of opinion that the court did not err in failing to charge on defendant's plea of limitations of three years. Having submitted the issue of absolute deed or mortgage and that of innocent purchaser, the court was not called upon to charge with reference to the issue of limitation. As appellee suggests, if the instrument executed by Simmonds to Wood was an absolute deed, title thereby passed to the defendant. If, on the other hand, it was a mortgage, and appellant knew that fact, it would not support the plea of three-year limitation, because then there would be a ``want of intrinsic fairness and honesty in the transaction.'"

The land was conveyed by Mrs. Woodle to appellee October 14, 1911. He testified he took possession of it and began to improve and cultivate it "right straight after he got the deed to it." His possession and use of the land continued to the date of the trial, to wit, October 21, 1917, a period of over six years. The jury found that the annual rental value of the 42 acres was $126, or $3 per acre. So the rental value of the land for the six years appellee used it was $756. In her motion appellant asked for judgment for that amount less $250 appellee paid Mrs. Woodle for the land, which appellant requested the court to allow appellee and deduct from the $756 representing the rental value of the land to the date of the trial. Had the rental value of the land as it accrued annually been applied to the payment of the $250 and interest thereon, there would have been a balance of $481.30 left at the time of the trial of the $756 representing the rental value for the six years appellee had the use of the land.

On the case as stated we think the judgment should have been in appellant's favor for the land and for damages in the sum of $481.30. Therefore the judgment of that court will be reversed, and judgment will be here rendered in appellant's favor as indicated.