# Knox v. Brown > Court of Appeals of Texas · February 17, 1928 · 8 S.W.2d 280 URL: https://www.frixlaw.com/law-library/cases/9830092 ## Case - **Full name:** Knox v. Brown. - **Court:** Court of Appeals of Texas - **Decided:** February 17, 1928 - **Citations:** 8 S.W.2d 280 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Funderburk - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9830092 ## Opinion text On Rehearing. Upon motion for rehearing appellee, Brown, insists with great earnestness that'the mortgage issue was conclusively found by the jury in his favor in their answers to questions other than special issue No. 8, which the jury did not answer, because they could not agree. Our attention is called to an incorrect statement we made in the original opinion to the effect that all parties agreed that, if there was an accounting on December 20, 1921, it showed that Knox owed Brown $30,213.50. The statement was made by way of illustrating the inconclusiveness of the jury’s findings upon other issues. It would have been correct to have said that such accounting showed that Knox owed Brown $7,-244.44, which, for the purposes for which the statement was made, would have served equally as well. We are still convinced that, if the evidence made the mortgage issue a question of fact, there was not such a certain and conclusive finding on said issue in favor of Brown as would warrant us in affirming the judgment. Our original opinion was based upon the assumption that there was some evidence that the deed, bill of sale, and option contract together were in fact but a mortgage. The endeavor of Brown to show that such issue was concluded by the jury’s answers to'other issues than the one upon which they failed to agree led us into this assumption. The statement of the evidence made to support this argument has suggested the possibility that there was no evidence on the mortgage question sufficient to raise an issue of fact to be submitted to the jury. Upon an examination of the evidence with this in mind, we have reached the conclusion that such is the case. The burden of .proof as to the mortgage issue was upon Knox. This burden was not to be discharged by testimony consisting of con: (Fusions or of possible, but not necessary, inferences. In Howard v. Zimpelman (Tex. Sup.) 14 S. W. 59 , Judge Gaines says: “The proposition that, in order to ingraft a parol trust upon a written instrument, it must be proved with clearness and certainty, was announced in this .court at an early day, and has since been substantially reiterated in. very numerous decisions [citing many authorities in support of this statement].” In the same opinion this language appears: “It is against the policy of the law that a written instrument should be shown by parol testimony to have’ an effect different from that which its terms import, except upon very strong proof.” In the case of Miller v. Yturria, 69 Tex. 549 , 7 S. W. 206 , the same learned judge uses this language: “In view of the very explicit statement in the agreement itself that it was a Conditional sale, and not a mortgage, it would require dear evidence to the contrary to hold it a mortgage.”' And: “It has been held by this court that, in order to establish that an absolute deed is intended as a mortgage, it must be proved with clearness and certainty, * * * an(j we think this rule applies also to an instrument which clearly shows upon its face a conditional sale.” The facts in the above case are strikingly similar to the facts in this ease. The conclusion of the vendor in that case that the instrument was a mortgage was given no weight by the court, but the controlling reason cited by the court for holding that the instrument in that case was not a mortgage is stated in this language: “She, it'is true, calls the instrument a mortgage; but this was evidently her own conclusion. She does not testify that the antecedent debts were not fully extinguished; and the fact *284 of the continued existence of a debt to be secured is held to be the true test of a mortgage.” The same principles were recognized and applied in Rotan Grocery Co. v. Turner, 46 Tex. Civ. App. 534 , 102 S. W. 932 ; Goodbar v. Bloom, 43 Tex. Civ. App. 434 , 96 S. W. 657 ; El Paso Sash & Door Co. v. Crawford (Tex. Civ. App.) 283 S. W. 232 . The case last above cited is also reported in 115 Tex. 508 , 283 S. W. 754 (Tex. Com. App.) 288 S. W. 171 , and (Tex. Civ. App.) 292 S. W. 924 . With this conception of the duty resting upon Knox, it will next be noticed that the mortgage issue tendered by him in his pleadings was to the effect that on December 20, 1922, he executed and delivered the several instruments as a mortgage to secure a debt at the same time created in the sum of $30,213.50, and which it was agreed was due and payable on or before June 1, 1923. The burden of Knox to show by clear and strong proof that the instruments were in fact a mortgage included the burden of showing that such mortgage existed by reason of the instruments being given to secure the indebtedness as alleged and which was due and payable as alleged; the indispensable.fact being the existence of the debt. Knox, after testifying to an agreement with Brown for the latter to take up a note for $3,000 due by Knox to the First State Bank of Trent; a note for $9,969.06 due by him to the Anson Bank, and two notes, aggregating $7,244.44 due by Knox to Brown, and that Brown was to execute a note to Knox in -the sum of $10,000, to be used as collateral security for a note in the sum of about $8,000 due by Knox to a hank in Abilene, then said: “After we agreed on this, we agreed then that I would give the bill of sale to the cattle and the deed, and that he would give me an instrument back, we called it, in the form of an option, to show that this was not a real sale. That was our idea at that time; to show that this was not a real sale. It was just for the purpose of securing these items that Mr. Brown was to take up for me. ⅜ ⅜ * I stated that under the agreement between Mr. Brown and me that I was to have a certain time in which to pay this amount which I olaAm I owed Mr. Brown. I had up until June 1, 1923, to pay that amount.” If there was any evidence raising the mortgage issue, such evidence must be found in the preceding quotation. It was undisputed that up to the time of the execution of the instruments Knox owed Brown $7,244.44 upon two certain notes, and it is equally clear that he owed him no other amount. There was no claim that the deed, hill of sale, and option contract were intended to secure payment of this note of $7,244.44. On the contrary, according to Knox, this was one of the items of indebtedness Brown agreed to take up, which, since it was one owing to Brown, would thereby be discharged. The instruments then could not possibly constitute a mortgage, unless it was true that on December 20,1921, Knox became indebted to Brown in the sum of $30,-213.50, which wtas about $22,000 more than he had theretofore owed him. The mortgage that was alleged to exist could not do so, unless it was also true that there was an agreement on the part of Knox to pay the indebtedness on or before June 1, 1923. To meet this requirement Knox says the option agreement was to show that the transaction was not a real sale. But that states no fact to show it was a mortgage. This is but the statement of a conclusion. That statement might apply to a conditional sale. Again he says: “It was just for the purpose of securing these items that Mr. Brown was to take up for me.” This is not the statement of a fact, but of a conclusion or inference. Besides the purpose testified about would have been served just as efficiently by a sale and option to repurchase. The testimony, therefore, is without evidentiary value. Lastly, Knox says that he was to have until June 1, 1923, to pay .the amount. Here he far more accurately describes a right to repurchase than an unconditional obligation to pay a debt on or before a certain time. To attempt to construe this statement as a promise or obligation to pay the amount on or before June 1, 1923, would (be doing violence to the plain import of his words. It will be observed that no witness testified in substance or effect that Knox agreed that, in consideration of Brown’s taking up the several items of indebtedness, which Knox owed other parties, he agreed to pay Brown the amount thereof. There is no mention of any interest payment; a very significant omission. $10,000 of the amount of the indebtedness which Knox, by his pleadings, claims he owed Brown, was represented by a note in which Brown' was maker and Knox payee. The attempted explanation of this rather strange fact is wholly discredited by the undisputed fact that Knox negotiated the note and Brown paid it. In holding that there was no evidence to show that the several instruments constitute 'a mortgage, we employ the term “no evidence” in the sense explained by Judge Denman in Joske v. Irvine, 91 Tex. 574 , 44 S. W. 1059 . We do not hold that there is no “slight testimony,” but that its probative force is so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established. It seems to us to come within the rule that there is no room for ordinary minds to differ as to the conclusion to be drawn from the testimony, which is that the instruments were what on their face they purport to be. If this be true, then the judgment of the trial court, whether rendered on exactly the correct theory or not, was in fact correct. This being the case, we are under no duty to disturb it. Galveston v. Morton, 58 Tex. 409 ; Newton v. Easterwood (Tex. Civ. App.) 154 S. *285 W. 646 ; General Bonding & Casualty Co. v. McCurdy (Tex. Civ. App.) 183 S. W. 796 . Because of the conclusions above announced, the motion for rehearing is granted, the judgment heretofore rendered, reversing and remanding the case is set aside, and the judgment of the trial court is in all things affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9830092. Public record. Not legal advice.