Opinion
No. 1725.
March 19, 1936. Rehearing Denied April 16, 1936.
Appeal from District Court, Hamilton County; R. B. Cross, Judge.
Suit by Elmer Richey against L. O. Wood. From a judgment for plaintiff, defendant appeals.
Affirmed.
Allen Allen, of Hamilton, for appellant.
H. E. Chesley, of Hamilton, and Geo. W. Barcus, of Waco, for appellee.
This suit was brought by Elmer Richey against L. O. Wood in trespass to try title to recover a house and lot in the city of Hamilton. A trial before the court without a jury resulted in judgment for plaintiff. The defendant appealed.
In 1929, for a recited consideration of $545, Wood and his wife conveyed the property in question to Richey by general warranty deed. As a matter of fact, Richey paid off a vendor's lien note against the property in the sum of $320 and paid a personal obligation of $225 owing by Wood as principal and Richey as surety to a local bank. It was Wood's contention that the conveyance was intended as a mortgage to secure the payment of the money so advanced by Richey. Both Wood and his wife gave testimony in support of this contention. It was Richey's contention that the transaction was a conditional sale. He testified, in substance, that at the time of the execution of the deed it was understood that he was to rent the property to Wood at $10 per month, and that Wood should have the right to repurchase it at any time within two years by paying Richey the amount of the purchase price ($545), together with any amount necessarily expended by Richey for repairs; and that Wood remained in possession and paid rent at the stipulated price of $10 per month until some time in 1932, at which time he ceased paying rent.
The warranty deed appeared on its face to evidence an outright sale of the property and was sufficient to place on Wood the burden of proving that it was intended as a mortgage. The evidence on the issue as to whether it was intended as a mortgage or as a conditional sale was conflicting, and the trial court having resolved that doubt in favor of the plaintiff Richey, we are bound thereby. Miller v. Yturria, 69 Tex. 549, 7 S.W. 206; Cochrane v. Wilson, 106 Tex. 180, 160 S.W. 593; Young v. Blain (Tex.Com.App.) 245 S.W. 65; Knox v. Brown (Tex.Com.App.) 16 S.W.2d 262; Mann v. Wright (Tex.Civ.App.) 269 S.W. 222; Sisk v. Randon, 123 Tex. 326, 70 S.W.2d 689; Brannon v. Gartman (Tex.Com.App.) 288 S.W. 817.
The judgment of the trial court is affirmed.