61 Tex. 331 | Tex. | 1884
The jury found on the special issues submitted to them, under appropriate instructions as to the constituent elements of a mortgage and a conditional sale respectively, that “ the transfer of the latid by Pratt and wife to Taylor was a mortgage.” The jury found likewise that when John H. Taylor, October 29, 1859, made the deed to Mrs. Letsy M. Pratt, the money paid to Taylor in consideration of said conveyance “ was not the individual money of Mrs. Pratt.” The jury also found that G. W. Pratt, the husband of Mrs. Pratt, did not consent, before nor at the time of the making and delivery of the deed aforesaid, that the conveyance of the land should be made by said Taylor to his wife, Letsy M. Pratt.
The facts thus found by the jury are decisive of the merits of this case, and upon them no other judgment could properly be rendered than one that must recognize the title of G. W. Pratt as having never passed from him to Taylor; and, also, that if Taylor became clothed with the legal title by virtue of the patent which issued to him, when he divested himself thereof and restored it by his deed of conveyance, that such deed had the effect to convey the legal title to the community existing between G. W. Pratt and his wife, and did not invest Mrs. Pratt with it as her separate property.
The finding that the transaction between Taylor and G. W. Pratt was in legal effect a mortgage, and not a conditional sale, seems to be well justified under the evidence. . See De Bruhl v. Maas, 54
As between Taylor and G. W. Pratt, the conveyance of the latter to the former (the transaction being a mortgage) did not invest Taylor with title nor a right to the possession of the land. A mortgage is but a security for the debt, the title remaining in the mortgagor subject to be divested by foreclosure. Wright v. Henderson, 12 Tex., 43. The mortgagor remains the real owner and entitled to possession. Duty v. Graham, 12 Tex., 427. The mortgagee cannot maintain an action of trespass to try title to recover possession of the mortgaged premises, if the transactions which invest him with a formal and absolute fee simple title are in fact but constituent parts of a contract, which, in its entirety, is in fact to be construed as being a mortgage. See Edrington v. Newland, 57 Tex., 627.
The title of G. W. Pratt as a pre-emptionist was inchoate or unperfected by patent from the government at the time when Taylor loaned the money to Pratt and obtained the conveyance or assignment from the latter as security for the loan, and by virtue of said instrument the patent was issued to Taylor, which, whilst it invested him with an apparent title, as between himself and Pratt, it constituted the grantee, Taylor, the mere naked holder of the legal title in trust for Pratt. The estate of Pratt was not extended or enlarged by the conveyance of Taylor to Mrs. Pratt; its effect was merely to unite the .legal and equitable title where it properly belonged, viz., in the community existing between Pratt and his wife. Taylor never became invested with any title which he could assert against Pratt, nor with such title. as he could convey to any other person, unless such person were an innocent purchaser for value and without notice of the superior equitable title of G. W. Pratt.
The real and beneficial title to the land never having been parted with by G. W. Pratt, Taylor possessed none such to convey to Mrs. Pratt. Her husband and herself were the owners in community of the land; and Taylor holding the land through the patent, and having thus the mere naked legal title which he had acquired under circumstances which constituted him a trustee for the Pratts, he possessed no beneficial interest to convey to Mrs. Pratt, nor did he have any other than such mere formal, lifeless title.
The merits of this appeal do not require any further consideration of the numerous grounds of error assigned than we have given in this opinion; there is no such error for which the judgment should be reversed, and we conclude that it therefore should be affirmed.
Affirmed.
[Opinion adopted March 25, 1884.]
Judge Watts, one of the Commission of Appeals, did not sit in this case.