Loving v. Milliken

Citations

• 59 Tex. 423
• 1883 Tex. LEXIS 188

Syllabus

<p>1. Mortgage — Equity.— In determining whether a deed, absolute on its face, shall be construed as a mortgage, equity will look to all the circumstances preceding and attending its execution, and sometimes to those which occur afterwards. If there was a debt due from the grantor, and a loan made which the deed was intended to secure, the deed will be deemed but a mortgage, no matter how the transaction is disguised, and this though no written evidence of the debt be made or preserved.</p> <p>2. Fact case.— See statement and opinion for facts held sufficient to establish a mortgage, though the deed was absolute on its face.</p> <p>3. Tender. — In trespass to try title and for possession, when the defendant, claiming. under a deed which, though absolute on its face, was really a mortgage, wrongfully obtained and withheld possession of the mortgaged premises, it is not necessary to a recovery by plaintiff that he should tender the amount due defendant. The defendant may, under proper averments, in such a case, have a judgment for his debt, and foreclosure and sale to satisfy it.</p>