Ascension v. Saenz

POPE, Justice. Appellants, plaintiffs below, contend that a deed was intended as a mortgage. The [267] trial court held that the instrument was a deed. We must determine (1) whether appellants’ pleadings gave fair notice of the issue stated above, (2) whether their points in the brief preserved the issue, and (3) whether the proof, as a matter of law, established appellants’ contention. Appellants, Jose Ascension and Mary Gomez Ascension, husband and wife, on January 4, 1957, entered into a written installment contract with G. W. Wilkinson by which they agreed to buy and he to sell Lot 2, Block 5, Kline Addition to the City of Gregory in San Patricio County. They paid their installments until they had paid $600 but still owed only $150 principal. During June, 1958, the Ascensions were pressed for funds. On June 10, 1958, Jose Ascension and Fielmon Saenz went to see Wilkinson, the vendor, and the transaction occurred out of which this suit arose. On the back of the contract there was written, “We have returned Lot 2, Block 5 to G. W. Wilkinson and he will sell and deliver deed to Fielmon Saenz.” Mr. and Mrs. Ascension signed beneath that statement. Saenz then delivered $190 to Wilkinson, which was the total of the unpaid principal and interest under the contract between Wilkinson and the Ascensions. Wilkinson delivered to Saenz a deed to the lot. The Ascensions later offered to repay the $190, but Saenz refused and claimed that he owned the property. Appellants’ first point complains of the trial court’s refusal to permit them to file a trial amendment, but appellants have failed to bring the proposed amendment forward in the record. We conclude that the matter was discretionary and that the trial court did not abuse its discretion, Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422. However, appellants’ pleadings upon which the case was tried sufficiently gave fair notice to the appellees that appellants claimed the deed was a mortgage. Rule 47, Texas Rules of Civil Procedure. Appellants described the land, they alleged that they contracted to buy it from Wilkinson and paid $600 on the consideration but owed $190 on June 13, 1958. They alleged that Saenz and Wilkinson agreed to help appellants, that Saenz advanced the money to Wilkinson, and that the Ascensions accepted the loan. They alleged that Saenz and Wilkinson made false representations to them when Saenz made the loan to them. Appellants tendered the $190 into court and prayed that the deed be set aside and cancelled, that appellees be ordered to surrender possession to appellants, and for general .relief. There were no exceptions to the pleadings. These pleadings gave notice that the appellants claimed not only that they had been defrauded, but also'that the deed was intended as a mortgage to secure Saenz for the money he advanced. The case was tried upon those theories, and the statement of facts shows that all parties so understood the trial from the véry inception of the testimony. The pleadings were adequate. It is also úrged that appellants failed to preserve the claimed error 'by an appropriate point in this Court. Appellants' points are that the judgment is contrary to the law, contrary to the evidence, and is not in accordance with equity and good conscience. If there were no more to the points, we would hold that they aré too general, but the statement under each of these points is that the transaction was one by which Saenz was obtaining security for his loan of $190 to the Ascensions. We look to the argument under the points, as we have before been instructed to do. Perkins v. Ingalsbe, 1961, Tex.Civ.App., 339 S.W.2d 343; Gleason v. Davis, 155 Tex. 467, 289 S.W.2d 228; Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286, 292; Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482. On the basis of the points, considered with the statement and argument under the points, appellants clearly contend that the deed was given as security only. We now examine the proof to determine if appellants proved as a matter of [268] law that the deed was intended as a mortgage. In our opinion, all of the evidence, including the admissions of both Mr. and Mrs. Saenz, supports appellants’ contention as to Saenz, but not as to Wilkinson. Saenz was called as the first witness, and after the first nine pages of the statement of facts, Saenz’s defense that the transaction was intended as an outright deed to him is left in shambles. Not once, hut several times, by direct and unambiguous answers he testified that he loaned the money to the Ascensions. He said it was advanced with the understanding that Jose Ascension was to pay it back. He testified that he went with Ascension to see Mr. Wilkinson, he paid the money to Wilkinson, that it was a loan and Ascension was to reimburse him. He said that Ascension tried to repay it in about four months, that he did not refuse to accept it, but Mrs. Saenz did. In answer to questions by his own attorney, he explained, “Well, I loaned him the money because he was about to lose the lot. He came and told my wife that, and my wife came and told me that it was all right, and so I told her it was up to her.” When Saenz was asked to give his reason for refusing to return the lot to appellants, with remarkable candor, he answered, “Well, the value is different now.” When asked why the vendor made the deed to him instead of Ascension, Saenz answered, “Well, it was made out to me so that I would make sure I would get my money back.” He said that, at the time he gave Wilkinson the $190, “it was merely a loan” and he expected to get his money back. He admitted that at that time he had no intention of keeping the lot. He stated that he told Mr. Wilkinson at the time of the transaction, “That I would lend the money to Ascension * * *. He was going to pay me back.” Mrs. Saenz’s testimony is equally direct. She testified, “I told them (Ascensions) I was going to lend them the money, but the deed was going to be in our name until they pay us.” When asked if she had expected the grantor to deed the property to them, Mrs. Saenz again testified, “No, sir, until they paid me, then we were going to deed it back to them.” She explained that she refused to accept the repayment of the $190 but that she had countered by offering the Ascensions $600 for their interest in the lot, which they refused. She explained why she changed her mind about the loan, saying, “And when they came and went inside the property and took all my plants out, and then I changed my mind, for not having her for a neighbor, because she also accuse me that I had entered into her house and that some of her clothes were taken out of her house and then I didn’t want her for a neighbor.” Mr. and Mrs. Ascension testified that the transaction was a loan with security. All of the testimony and the quoted admissions by Mr. and Mrs. Saenz demonstrate that the parties intended the deed from the vendor as security to protect Saenz. A party who testifies as to the existence of a fact is absolutely concluded thereby, unless he makes a correction, retraction, pr explains it by reason of some mistake, oversight, misunderstanding, or lack of definite recollection. Griffin v. Superior Ins. Co., Tex.Sup., 338 S.W.2d 415; Stanolind Oil & Gas Co. v. State, 136 Tex. 5, 133 S.W.2d 767, 145 S.W.2d 569; United States Fidelity & Guaranty Co. v. Carr, Tex.Civ.App., 242 S.W.2d 224 ; 2 McCormick & Ray, Texas Law of Evidence, § 1127. Hence, as a matter of law, the deed to Saenz was a mortgage to secure the repayment of the $190 he advanced on behalf of Ascensions. Wilbanks v. Wilbanks, 160 Tex. 317, 330 S.W.2d 607; Bradshaw v. McDonald, 147 Tex. 455, 216 S.W.2d 972; Kokernot v. Gilstrap, 143 Tex. 595, 187 S.W.2d 368. Wikinson, as the grantor, gave a deed to Saenz, the lender, who advanced the money for Ascension, the purchaser. This fact does not alter the rule. Conway v. Moore, 70 Cal.App.2d 166, 160 P.2d 865; Henry v. Britt, 265 Ill. 131, 106 N.E. 455; Glass v. Hieronymus, 125 [269] Ala. 140, 28 So. 71; 36 Am.Jur. Mortgages, § 128. The judgment in favor of Wilkinson, however, must be affirmed. There is no evidence that hints that he overreached anyone. His only connection with the transaction was to follow the instructions of Ascension and Saenz by conveying to Saenz instead of Ascension. His only interest was to obtain the money that all parties concede was due him. He could have forfeited the contract with Ascension, but because Ascension had paid most of the installments, he cooperated so he would not lose his investment. The judgment is accordingly affirmed, insofar as it denies all relief against Wilkinson. As against defendant Saenz, the judgment is reversed and is here rendered that the deed from Wilkinson to Saenz covering the property described in this opinion be declared a mortgage, that Saenz have and recover the $190 tendered into the registry of the court in payment of the Ascensions’ debt to Saenz, that the deed to Saenz be cancelled and set aside, and that Ascensions be awarded title and possession of the property. Costs are adjudged against Saenz.