56 Tex. 478 | Tex. | 1882
Ordinarily when parol evidence is admitted to show that a deed, absolute on its face, was intended by the parties as a mortgage, it is done with the view of its enforcement as a mortgage. On the ground that equity forbids the use of the deed as a conveyance where the parties only designed it to operate as a security, parol evidence is allowed to show that such was the intention of the parties. The appeal is for equitable relief, and is accompanied with the proffer to do what equity requires, by submitting to the enforcement of the instrument as a mortgage. In such cases the proof must be “ clear, satisfactory and convincing.” Jones on Mortgages, vol. 1, sec. 335 and authorities there cited. See also Grooms v. Rust, 27 Tex., 234 and cases there cited. But here the attempt is to show by parol that a deed absolute on its face was intended merely as a security, the purpose being not to allow it to operate as intended, but to absolutely cancel and annul the instrument on the ground that by the constitution and laws of this state any mortgage or lien on the homestead is invalid. Doubtless the illegality of this contract may be shown to defeat it. If in truth the real transaction between the parties was not a sale, but was merely to operate as a security or lien on the homestead for the reimbursement of the sureties on the official bond of Davis for such amount as they might be compelled to pay to satisfy recoveries against them as such sureties, then these facts being established by “clear and strong proof,” the illegality of the contract would be apparent. 1 Jones on Mortg., sec. 622 and references.
But whether the parol evidence be admitted on equita
On the whole case, thinking it most unreasonable that the parties should have intended the deed to operate as a mere security, when they knew it would be inefficacious as.such, the court holds the circumstances in evidence insufficient to overturn the positive testimony as to the intention of the parties, and to establish with sufficient clearness and certainty that no sale was intended, but merely an arrangement for the security of the sureties of Davis.
The judgment is reversed and the cause remanded.
Reversed and remanded.