Reports of cases argued and decided in the Supreme Court of the State of Texas during December term, 1848. Volume 3. Page: 3
vi, 659 [660] ; 22 cm.View a full description of this book.
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STAMPERS VS. JOIINSON. 3
IMr. Justice WnHEELER, after stating the facts, delivered the
opinion of the court, Mr. Justice LIPSCOMB not sitting.
For the plaintiffs in error, it is insisted, in effect, that the
contract between the parties was evidenced by writing, and
that the writing should have been declared on as the foundation
of the action; that if not an absolute sale, it was a mortgage,
and should have been proceeded upon as such; that the
written contract having been made with one, the action will
not lie against two; and that the loan having been evidenced
only by parol, was merged in the written contract,4and no
action upon it can be maintained.
In so far as objection is taken to the form of stating the cause
of action, it certainly is not well. founded. The plaintiff did
not rely upon the writing as furnishing the evidence of his right
of action, but solely upon the parol contract of loan. That
appears to have been described and set forth truly, according
to the facts as disclosed in evidence. It cannot be a serious
objection to the maintaining of the action, that an accurate
description of the plaintiffs' case has caused the petition to
assume a common law form, when that form is appropriate to
the facts which constitute the cause of action. The questions
presented by the record, and in argument, seem to be1st.
Was the transaction which is the subject-of controversy,
in effect, a loan of money with a mortgage security? and was
parol evidence admissible to control the import of the bill of
sale, to connect with it the defeasance, and to show that, though
absolute on its face, it was intended as a mortgage? and if so,
2d. Does it establish that to have been the character of the
instrument?
3d. If a mortgage, could the plaintiff waive his remedy
upon the mortgage, and proceed for his debt upon the parol
contract?
1. Upon the first question here presented, there are numerous
authorities, which establish beyond question that parol evidence
is admissible to control the clear import of an absolute
deed; and to show that the deed, though absolute on its face,
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during December term, 1848. Volume 3., book, 1881; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28571/m1/9/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .