Mann v. Falcon

| Tex. | Jul 1, 1860

Wheeler, C. J.

The exceptions taken to certain of the interrogatories put to the witnesses, that they were leading, do not appear to have been brought to the attention of the court. It does not appear that there was any ruling upon them, and there is therefore no decision of the court upon the exceptions for this court to revise.

The doctrine that parol evidence is admissible to prove that a deed, absolute upon its face, was made and intended as a security for a debt, and is therefore a mortgage, is too well settled to require the support of a reference to authorities. It is also settled by the repeated decisions of this court, that, under the plea of “ not guilty,” in the action of trespass to try title, the defendant may give in evidence any special matter of defence to the action, whether legal or equitable. In order to- admit evidence of such matter of defence, it is not necessary for the defendant to plead it specially. This is an anomaly in our pleadings, but it is the law and can only be changed by the law making power. (Punderson v. Love, 3 Tex. R; Rivers v. Foot, 11 Tex. R., 662.) The court therefore did not err in admitting the defendant’s evidence under the plea of “ not guilty,” to prove that his deed to Mann & Kinney, of the 10th of September, 1845, under which the plaintiffs claim title to the land in question, though on its face an absolute conveyance, was, in facte a- mortgage. The plaintiffs had seen proper to bring an action of trespass to try title; and it was-the right of the defendant, under the statute, to rely on the plea of not guilty alone, and to introduce the evidence to support hisdefence under the plea.

The question whether a mortgage or not was fairly submitted to the jury by the charge of the court. The evidence introduced by the defendant was amply sufficient to warrant them in finding a mortgage ; and though there was evidence on the other side that went to support the opposite conclusion, it was for the jury to decide upon the credit to which the witnesses introduced by the parties respectively were entitled, and upon the weight of evidence. We can not say that the verdict was contrary to the evidence. It establishes that the supposed title relied on by the plaintiffs for a recovery, was a mortgage, and the consequence is that the rights and remedies of mortgagor and mortgagee attach to. the parties to the instrument, and to the parties to the suit, unless the plaintiffs, or some of them, are purchasers without notice that the deed of the 10th of September, 1845, was a mortgage. Upon this point the jury were properly instructed by the court, and upon the evidence before them they were well warranted in finding that none of the plaintiffs were entitled to be deemed innocent purchasers. (Watkins, et al. v. Edwards, et al., 23 Tex. R., 443.) The question then is, were the plaintiffs as mortgagees entitled to maintain this action to recover the possession of the mortgaged premises from the mortgagor in possession ? This question is answered in the negative by the decision of this court in the case of Duty v. Graham. (12 Tex., 427" court="Tex." date_filed="1854-07-01" href="https://app.midpage.ai/document/duty-v-graham-4888065?utm_source=webapp" opinion_id="4888065">12 Tex. Rep., 427.) The point was there directly ruled, upon full argument and consideration of the question, that the mortgagor remains the real owner of the land, and entitled to the possession, after as before the breach of the condition of defeasance, and the mortgagee can not maintain an action of trespass to try title to- dispossess him. And this must be decisive of the present case. It is an action of trespass to try title, which, upon the authority of the case cited, can not be maintained by the mortgagees against the mortgagor.

The present is materially different from the case of Hannay v. Thompson. (14 Tex. R., 142.) That was a suit by the mortgagor against the mortgagee, rightfully in possession under a deed from the plaintiff, absolute upon its face; and it was held that the mortgagor could not recover back the possession after condition broken, without first discharging the debt which the mortgage was given to secure. Here the case is different. The mortgagees have brought their action to recover the possession of the mortgagor, in whom the right of property and possession remains. The action, as we have seen, can not be maintained, for that would be to dispossess the party who is the rightful possessor as against the mortgagees, and those who claim under them; and whose right of possession is not defeated or determined by the breach of the condition of defeasance, and can only be determined by a decree of foreclosure of the mortgage.

It is objected to the judgment that it does not accord to the plaintiffs their rights under the mortgage; in effect, that the court did not decree a foreclosure. To this it must be answered that the plaintiffs did not ask that relief. They did not so frame their petition as to enable the court to decree a foreclosure of the mortgage. They were the actors, seeking the aid of the court to enforce their supposed rights. They are supposed to have known what their rights were, and the facts upon which they depended; and if they were such as, in any event, to entitle them to a decree of foreclosure, and they desired that alternative relief, in case their deed should be adjudged a mortgage instead of an absolute conveyance, they should have framed their petition with a view to that alternative aspect of the case. It was incumbent on them to state a case which entitled them to the relief they sought. There is no clearer or better settled principle than that a plaintiff must recover upon the case on which he has based his right to a recovery in stating his cause of action. (Parker v. Beavers, 19 Tex. R., 406.) It is an elementary principle in judicial proceedings in all courts, that the recovery must be secunden* allegata et probata. Upon a petition framed with the sole view to a recovery of the premises in an action of trespass to try title, the plaintiff cannot have a decree for the foreclosure of a mortgage. And such is the present case. The plaintiff failed to make out his case in evidence, and the judgment left the parties in statu quo. It adjudges nothing more than that the plaintiff is not entitled to recover upon the case stated; and that is the legal consequence of the finding of the jury upon the evidence. It does not conclude the plaintiffs of their remedy upon the mortgage. They still have their action for a foreclosure, if indeed there is anything due upon the mortgage; unless they have lost their remedy by their neglect to sue within the period of the statute of limitations. The judgment is right upon the plaintiffs’ allegations and the verdict of the jury; and the court did not err in refusing to make the satisfaction of the mortgage a condition to the admission of the defence.

There is no error in the judgment and it is affirmed.

Judgment affirmed.