141 S.W. 337 | Tex. App. | 1911
The court instructed the jury as follows: (1) That the written instruments executed by Sam Burks and wife to Mosley, and by Mosley to Mrs. L. A. Burks, were upon their faces deeds and sufficient to convey the premises in controversy. (2) That if the deed from Burks to Mosley was executed and delivered as security for a debt it should be construed as a mortgage; and if the deed from Mosley to Mrs. L. A. Burks was intended as a means of securing the latter in the payment of a debt it should likewise be regarded as a mortgage. (3) If the jury found that both of these were mortgages, they should return a verdict in favor of the plaintiff, Sam Burks. (4) The jury was also *339 directed to return a verdict for the plaintiff if they believed the deed from Burks and wife to Mosley was intended by the parties as a mortgage and that Mrs. L. A. Burks bought the land from Mosley, but at that time had notice that the deed to Mosley was intended merely as security for a debt. (5) To find for the defendant if a preponderance of the evidence did not show that the deed from Sam Burks and wife to Mosley was a mortgage. (6) To find for the defendant if the jury believed that the deed to Mosley was in fact a mortgage, and that Mrs. L. A. Burks bought and paid value for the land without notice of that fact. (7) To find for the defendant if the jury believe that Mrs. L. A. Burks bought the land from Mosley, and that Sam Burks agreed to the purchase. (8) The form of the verdict in case the jury found for the plaintiff should be, "We, the jury, find for the plaintiff."
The jury returned a verdict substantially in that form. Upon this the court entered a judgment in favor of the plaintiff, Sam Burks, against the defendant, Mrs. L. A. Burks, for the title and possession of the land, a personal judgment in favor of the defendant against the plaintiff for the sum of one hundred dollars and interest at the rate of 10 per cent. per annum from the 24th day of February, 1906, and in addition thereto made the following order: "It is further ordered by the court that the mortgage and lien existing on the land above described to secure the payment of the said one hundred dollars ($100.00) and interest be foreclosed, and in the event this case is not appealed to the Court of Civil Appeals, 6th Supreme Judicial District of Texas, the plaintiff, Sam Burks, shall have thirty days from the adjournment of court to tender to defendant, Mrs. Laura A. Burks, the sum of one hundred dollars ($100.00) with ten per cent. interest per annum from February 4, 1906, the date of said tender, in full satisfaction of this judgment. In the event of an appeal of this cause from this judgment to said appellate court, then in said event, the plaintiff, Sam Burks, shall have forty (40) days from the date of filing in this court of the mandate of said court to which it may be appealed in which to make tender of the said one hundred dollars ($100.00) and interest from February 24, 1906, to the date of said tender. In the event said plaintiff, Sam Burks, shall fail to tender to the said Mrs. Laura A. Burks, defendant, within forty days from the adjournment of this court, in the event this cause is not appealed, and if appealed within forty days after filing in this court the mandate from the court to which said cause may be appealed, the sum of one hundred dollars ($100.00), with interest thereon from February 24, 1906, to the date of tender, then the clerk of this court is ordered to issue an order of sale," etc. Then follow the usual directions as to the seizure and sale of the land.
Appellant objects to the portion of the judgment quoted, for the following reasons: (1) Because it did not require the plaintiff to make an absolute tender and pay the money into the registry of the court subject to its order; (2) because it was contrary to the "proof in this case" to the effect that the evidence showed the tender of a check for the sum of $137.50; (3) because the judgment left it optional with the plaintiff to pay the money, and gave him an indefinite time within which to exercise that option. These objections are embraced in the assignment, which is followed by this proposition: "The judgment of the court must conform to the pleadings, the nature of the case proved and the verdict." The proposition is but a partial quotation from article
The issues presented by the original pleadings of both parties simply involved the title to the premises, and the right of possession; and these were the only issues submitted in the charge of the court and passed upon by the jury. The jury was instructed to return a general verdict for the plaintiff if it found that both of the deeds referred to in the testimony were intended as mortgages, or that the one to Mosley was intended as such and that the appellant, defendant below, bought the premises with a knowledge of that fact. The general verdict rendered for the plaintiff below settled in his favor the issues of title and right of possession only. If the plaintiff below was the owner of the premises and had not parted with his title nor the right of possession, but had merely given a mortgage to secure the payment of a debt, and the mortgagee, or one who had purchased from him with notice, was asserting ownership, the plaintiff had the right to bring an action in the form he did to try the title and the right of possession.
In this state the mortgagor is considered the real owner of the mortgaged property, and is entitled to the possession in the absence of some stipulations to the contrary; and he may bring an action against the mortgagee when the latter unlawfully obtains possession, or wrongfully asserts title to the mortgaged premises. Morrow v. Morgan,
If it appeared that the instrument in controversy was in fact a mortgage held as security for a debt then due and unpaid, *340
but that the creditor had refused to accept payment and extinguish the mortgage, the mortgagor would have the right to institute an action to redeem his premises from the incumbrance thus continued. 3 Pomeroy, Equi.Jur. § 1219. The author above referred to says: "It is, however, a settled doctrine in all these states that the mortgagor in possession may maintain a similar equitable suit whenever, from dispute as to the amount due or any other cause, the mortgagee refuses to accept payment and discharge the mortgage. The mortgagor can always come into a court of equity and obtain a decree removing the lien of the mortgage. Although this suit is uniformly termed a suit `to redeem,' and the relief called `redemption,' yet it is really one to free the mortgagor's land from the incumbrance, to compel the mortgagee to accept the amount actually due, and to discharge the mortgage of record." Continuing, the same writer says, concerning the right to bring such a suit: "The essential requisites of maintaining the suit are that the mortgaged debt should be due and payable, that the mortgagor should offer to pay whatever amount is due, and should pay the same whenever ascertained and fixed by the decree, and that relief should be sought in equity." See, also, Daubenspeck v. Platt,
The same right is recognized by numerous decisions of this state. However, the two causes of action, the right to try title and recover possession, and to redeem, are two separate and independent causes of action, and each must be presented by appropriate pleadings, while it is true that under our system both might be joined in the same suit, where the parties and the property in litigation are the same, yet that does not dispense with the necessity for pleading the facts essential to show the rights claimed and to support the particular judgments sought. Edrington v. Newland,
If the record in this case contains any pleadings upon the part of either party sufficient to warrant the trial court in rendering that portion of the judgment complained of it must be found in the plaintiff's supplemental petition, and in that part which has been literally quoted. There was no allegation in that pleading that the debt is due, and the prayer for relief is, to say the least, ambiguous and uncertain. The language of the prayer is, "and plaintiff prays the judgment of the court that he take his land with his costs as prayed for in his original petition," etc. The judgment prayed for in the original petition was "for the title and possession of the said above described land and premises, and that a writ of restitution issue, and for rents, damages, and costs of suit," and for general relief. The prayer for general relief in the original petition must be held to have reference to the relief which the facts there alleged would authorize and no other. Jordan v. Massey,
Under our statute the prayer for relief is an essential part of the petition. Jordan v. Massey, supra, and cases there cited.
The difficulty of resolving this ambiguity of meaning in favor of that construction which would make the supplemental petition form the basis of an independent cause of action is increased when the rules adopted for the regulation of pleading are considered. Supplemental petitions are not designed for supplying averments of fact which should have been made in the original petition. Townes' Pleading, pp. 309, 321. If by reason of this uncertainty it may properly be held that there are no pleadings in the record which would authorize the court to render a judgment which in effect grants the right of redemption to the plaintiff in the action, that portion of the judgment, at least, is fundamentally erroneous. Edrington v. Newland and Mann v. Falcon, supra. But conceding that the pleading is sufficient to form the basis of the judgment rendered, still another difficulty arises, and that is the failure of the jury to pass upon the facts essential to warrant that character of relief.
Article
We sustain the objection, for the reasons stated; but we do not consider it necessary to disturb that portion of the judgment disposing of the issue of title to the premises, in as much as it relates to a separable controversy, and is not complained of except upon the ground that the evidence was insufficient. While it is true the evidence was conflicting, still we think it is sufficient to sustain the finding of the jury upon that issue. It may be proper to say in passing, that we do not regard some of the specific objections urged in the assignment first considered as tenable.
Where the mortgagor resorts to the equitable action of redemption, and alleges and proves that the debt is due, and that he has tendered payment and this has been refused by the mortgagee, the mortgagor is not required, as a condition upon which he may recover, to actually make profert in curia of the money due. It is sufficient if he offers in his pleading to do equity by paying to the creditor whatever sum may be found to be due. 2 Jones on Mort., § 1095; 17 Ency. Plead. Prac. pp. 967, 968; Baumann v. Pinkney,
The judgment in this case will be reformed by eliminating that portion embraced within the assignment of error considered, and as reformed will be affirmed.