Horne v. Puckett

22 Tex. 201 | Tex. | 1858

Wheeler, Ch. J.

The third instruction was framed with a direct reference to the evidence, and there can be little doubt that it had a controlling effect upon the verdict.

The jury must have believed the conclusions of fact submitted in the charge. They could not doubt that Puckett was to settle the debt with Harris, of $382, for which the negro had been mortgaged, and which it was proved that he did settle: nor that Puckett was to advance other sums, which it was proved he did advance; nor that the bill of sale, in the language of the charge, “was treated” by the parties as a conveyance of the negro absolutely, and not as a mortgage; for it was proved that the parties both called it an absolute sale, and represented, or as it is expressed in the charge, “treated” it as such, at and after the making of it. They had given it that form, and they held it out to the public, as being in substance and fact, what it was in form. About this, there could be no doubt or dispute. And the jury were instructed, that if such were the facts, they must find for the defendant. Under this charge, thus applied directly to facts which did not admit of doubt or dispute, the jury could not do otherwise than return the verdict they did. Upon the assumed facts, which were not, and could not be controverted, the effect of the charge in question was, to take from the consideration of the jury, the very question to be decided, whether a mortgage or not, and to decide the case. The question was not, whether the transaction was, on its face, an absolute sale, or whether the parties, in their conduct and representations, so treated it. It could not be disputed, that they did. But the question was, whether, notwithstanding they had given it that form and appearance, such was, in fact, its substance, as understood between the parties themselves; whether it was, in fact, what on its face it purported to be, an absolute Bale; and this question was to be decided by the jury, upon the evidence, independently of the form of the instrument, or the phase sought to be put upon the transaction, by representations and admissions of the parties. But the instruction assumed that, if the circumstances were, as indicated, it was not a mortgage, but an absolute sale, and the case was decided accordingly. In this, there was error. Those circumstances were not the test by which to resolve the question of a mortgage or not. The law applies a very different test. (Stamper v. Johnson, 3 Tex. Rep. 1; Luckett v. Townsend, Id. 119; Stephens v. Sherrod, 6 Id. 294.) It looks to the real nature of the transaction, irrespective of the forms under which the parties have sought to cloak and disguise it. And so, it appears, the court understood the law, and sought to express it, in other parts of the charge. And if that part of the charge, which follows this instruction, had been expressed in language equally adapted to the comprehension of a jury, and applied as directly to the evidence, tending to show that the transaction was in fact a mortgage, and not what it purported to be, an absolute sale, it might, perhaps, have been held, that the error in this instruction, was obviated by the other instructions. But in view of the evidence, and the terms in which other portions of the charge are expressed, there can be little doubt, we think, that the instruction in question had a contiolling effect upon the finding of the jury. The judgment is therefore erroneous, and must be reversed, and the cause remanded for a new trial.

Reversed and remanded.