Hannay v. Thompson

Wheeler, J. If the defendant had pleaded his title specially under the decisions of the Court, (Rivers v. Foot, 11 Tex. 662; Paul v. Perez, 7 Id. 338,) the plaintiff might have been required to give notice by pleading, of the intention to show by parol evidence that the absolute conveyance under which the defendant claimed and held possession, was a mortgage. But as the conveyance was not pleaded, and the plaintiff had not notice of the title under which the defendant claimed, she was not bound to anticipate his defence, or the evidence he would adduce in support of it, and had the right to rebut such evidence, or avoid the effect of it when introduced, by any evidence in her power. (Ib.) The evidence, therefore, was [145] rightly admitted, and showed, doubtless what was the truth of the case, that the conveyance was a mortgage. That point is now conceded, and does not require further notice. But the correctness of the judgment is questioned upon another ground, which it is material to consider. The defendant, or those under whom he claims, went into and held possession under an absolute conveyance by the plaintiff, putting him in possession, and clothing him apparently with an indefeasible title to the premises. The plaintiff now seeks to recover the possession unconditionally ; and to avoid the effect of the conveyance, proves that it was in fact a mortgage. Yet it appears that the debt has not been paid, and that there has been a breach of the condition of defeasance, which constituted the deed a mortgage. And the question is, whether, where the mortgagee is thus rightfully in possession, and after the condition broken, the mortgagor is entitled to recover the possession without first discharging the incumbrance. And it is clear that he is not. In the case of Graham v. Vining (12 Tex. R.) it was decided that the mortgagee out of possession, cannot recover the possession of the mortgagor. But there is no case where the mortgagee has been thus placed in possession under the mortgage, and by its terms is entitled to retain it, in which it has been held that the mortgagor can recover of the mortgagee the possession after the condition broken, without first discharging the debt which the mortgage was given to secure. The action, though in form trespass to try title, upon the setting up of the mortgage by the plaintiff, became in substance a suit to redeem. On payment of the debt remaining due, after taking an account of the rents and profits, and improvements, the plaintiff was entitled to recover the possession; but clearly not before. The contrary, however, was maintained in the instructions to the jury, and in the judgment rendered upon the verdict. The judgment must therefore be reversed and the cause remanded. Reversed and remanded.