33 Tex. 68 | Tex. | 1870
This is a suit of “ trespass to try title,” brought on the fifteenth of October, 1866, by Francis O. Peck, the widow of Barton Peck, who was subsequently, by amendment, joined with the heirs of Barton Peck, for the recovery of four lots in the town pf Goliad.
The plaintiffs set out in their petition a deed under which they claim title. This instrument purports to be an absolute conveyance from A. M. Boatright and E. M., Boatright, his wife, of the four lots and the improvements thereon, the same being their homestead and occupied by them; and was duly executed and acknowledged as a conveyance of their homestead to Barton Peck, on the twenty-third day of August, 1855. At the same time and place, there was executed a written agreement between Barton Peck and A. M. Boatright and his wife.E. M. Boatright, which-is as fellows:
“ This agreement, between . Barton Peck, of the first part, and A. M. Boatright and his wife Eliza Maria Boatright, of the second part, witnesseth, as follows: Whereas, the parties of the second part have this day sold to the party of the first part, lots one, two, three and four, in block six, of range D, in the town of Goliad, in Goliad county, of the State of Texas, embracing the homestead of the parties of the second part, for the price of one thousand dollars. Now, it is agreed, that the parties of the second part have the privilege for themselves, their heirs and assigns, ■ of repurchasing said premises from the party of the first part,
“ In 'testimony whereof the several parties hereto subscribe their names and affix their seals, this twenty-third day of August, 1855, and done in duplicate—one for each party.
“ A. M. BOATRIGHT, [Seal.] “E.M. BOATRIGHT, [Seal.] “ BARTON PECK, [Seal.]
“ A. N. SMITH, 1 “ B. DONNELLY.”
This case was continued from term to term, until the August term, 1888, when a trial was had and the jury rendered the following verdict:
“ We, the jury, find for the plaintiffs, that they recover the premises described in the petition, on the ground that the plaintiffs are absolutely entitled thereto.” Upon this verdict was rendered a judgment-that the plaintiffs recover the property of the defendants, and that a writ of possession issue.
Appellants assign various .errors, only one of which it is necessary to examine, namely—that the court erred in its instructions to the jury. Among other things, the court charged as follows:
“ In this cause the jury, in making up their verdict, should first consider and determine whether the instrument set out in plaintiffs’ petition, as a deed from Boatright and wife to Peck, was in- . tended by the parties thereto to be a bona fide deed, conveying absolutely the title to the premises described, or whether it was*75 intended as a mortgage to secure the payment of a certain sum o^ money; and should the jury come to the-conclusion, after carefully weighing all the evidence and circumstances of the case, that the deed was intended by the parties to be an absolute conveyance, then they will simply find for the plaintiffs, the .land and premises described in plaintiffs’ petition.” This charge is erroneous, because it directed the jury to judge of the legal effect of the deed and defeasance, which was the province of the court to have done, leaving the facts alone to be found by the jury. The legal, construction of these two instruments, whether they constituted a mortgage or not; was a question of law to be decided by the court* The question of the existence and execution of these two instruments was a fact to be left to the jury to decide.
This erroneous charge may have, and probably did lead the minds of the jury to the verdict they rendered! For this error, the verdict should have been set aside by the court below. The judgment, therefore, is reversed, and this court proceeds to render such judgment as should have been rendered iri the court below.
The deed conveying the homestead to Peck, and the contract for reconveyance having been executed at the same time by the same parties, and having reference to the same property and calling for the same amount of money, viewed together and taken with the fact that the parties conveying the property remained in possession, constitute a mortgage, securing the payment of one thousand dollars loaned by Peck to Boatright. The lease, with rent at forty dollars per month, was a device to receive a greater premium or rate of interest than twelve per cent, per annum, and consequently the contract was usurious, and all the interest which was represented by rent .was forfeited; and by the rules of equity adopted by this court,' all the interest paid upon an usurious contract is credited upon the principal debt.
The record shows that Boatright paid to Peck, at various times prier to the first of January, 1857, the sum of $640 as rent, and
It is therefore adjudged and decreed that the appellants, A. M. and E. M. Boatright, be quieted in their possession of lots one, two, three and four, in block six of range D, in the town of Goliad, in Goliad county, and that the said A. M. Boatright be decreed to have full title in and to said property, and that the same stand discharged from all liability and lien created by the said deed and agreement, bearing date twenty-third of August, 1855, and that the said deed and agreement be canceled; and that the appellants do have and recover from the appellees all costs in this behalf expended, for which execution may issue.
Reversed and rendered.