69 S.W.2d 479 | Tex. App. | 1933
In view of the evidence in the record and upon due determination of weight and sufficiency, this court does not feel justified in exercising its power to approve and adopt as a fact the answer of the jury to question No. 1. The evidence in that respect is slight and conflicting and there is room to hesitate or doubt as to the existence of such ultimate fact. In our mind the answer must be considered as being against the weight of the evidence and upon that ground alone it is here disapproved and not adopted but is set aside. The deed of conveyance of the 13 1/2 acres by J. A. King to plaintiff was absolute and unconditional upon its face and was duly recorded in the deed records of the county. It was of record and constituted full legal notice when the subsequent instruments were executed by J. A. King to the defendants. The presumption, created by the language of the deed, is that the instrument is what it purports to be, an absolute conveyance, and will operate as such, unless the evidence proves it to be something different from what it purports to be and changes its apparent character into a mortgage. The doctrine is applied that, a deed absolute in form, given to secure the payment of a debt, will be considered a mortgage, although the defeasance rests wholly in parol. 41 C.J. § 94, p. 328; Gibbs v. Penny,
In passing it is observed that the defendants have recovered judgment for the property as against the plaintiff. If the deed is a mortgage only, as the defendants must establish by proof, they cannot recover the land without tendering the amount of the debt and interest. Hicks v. Hicks (Tex.Civ.App.)
The judgment is reversed and the cause remanded.