Henry, Associate Justice.
This was an action of trespass to try-title, brought by W. S. Jones as administrator of the estate of Jesse Mumford, deceased. The land in controversy is 1032 acres out of the Jesse Mumford headright league.
The petition charges that defendants assert a claim to the land under a pretended deed purporting to have been made by said Jesse Mumford and his wife Eldora Mumford to dofendants J. W. Jackson and Daniel McKay on the second day of March, 1882; that said deed purports to have been executed in consideration of the sum of $1985 paid the grantors, but in fact it was executed as a mortgage to secure the payment of a debt owing at the time by said Jesse Mumford to said Jackson and McKay, or to one of them, not exceeding the sum of twelve hundred dollars, loaned by said Jackson and McKay to said Jesse Mumford about the first day of September, 1881.
Plaintifi avers that if the evidence is insufficient to show that the deed was intended as a mortgage, it ought still in equity he held one, because at and long before the date of its execution said Jesse Mumford was an old, infirm, and weak man, both mentally and physically, embarrassed by debt and pressed by creditors; that his wife was also weak minded and incompetent; that defendants Jackson and McKay were well aware of the condition of the Mumfords and fully enjoyed their confidence.
That the land at the time said deed was executed was worth not less than ten thousand dollars; that no money was paid to Mumford at the date of its execution, the only consideration being an antecedent indebtedness; that said Jackson was then the agent and confidential adviser of said Mumford, and said McKay was an old Texas veteran, neighbor, and their pretended friend, and being such said Jackson and McKay fraudulently combined to overreach and cheat the said Jesse Mumford and Eldora Mumford out of said land, and in pursuance of that purpose procured the execution of said deed by them; that the annual rental value of the land is five hundred dollars; that Jackson and McKay have sold part of the land and appropriated the proceeds, as well as the rents of the unsold land, in all amounting to more than Mumford’s indebtedness to them; that the other defendants are chargeable with notice of all of said facts.
Plaintifi prays that either the deed be declared a mortgage, or be declared void for inadequacy of consideration and fraud in obtaining it, and that he recover the land, etc.
The defendant Benjamin E. Brown answered, claiming one hundred [108]*108acres of the land, described by metes and bounds, purchased by him under Jackson and McKay by warranty deed for a valuable consideration and without notice, and he also pleaded not guilty, and improvements in good faith.
The defendants J. W. Jackson, Daniel McKay, and George Jackson answered by demurrers, general and special, and by general denial, and also pleaded the statute of limitations of three years, possession in good faith, and valuable improvements.
The cause was tried without a jury, and the judgment of the court was in favor of Sampson Harrison on his disclaimer and in favor of Benjamin Brown for 100 acres as an innocent purchaser for a valuable consideration, and against J. W. Jackson, Daniel McKay, and G. W. Jackson for 932 acres of land, crediting claim of J. W. Jackson and Daniel McKay with $1100 received from Eads and Whittington, and giving judgment against plaintiff for $885 with eight per cent interest from and after the day the writ of possession is executed, and the 'same was a charge upon said land to be paid in due course of administration.
Plaintiff was permitted to read in evidence over the objections of defendants twelve deeds, ten of them between Jesse Mumford and other parties, and two to which Jesse Mumford was not a party directly but that had relation to his land and some of the other deeds.
Some of the ten deeds had relation to the land in controversy and some to different land owned by Mumford.
Three of the twelve deeds were transactions between Mumford and J. W. Jackson, one of the defendants in this suit. Hone of the defendants were parties to the remaining nine deeds.
The deeds from Mumford were all in the form of absolute conveyances of the title with general warranty; the deeds to him were reconveyances of the property in the same form. The deeds between other parties were conveyances by Mumford’s vendees of the property while it was in their names by the same form of conveyance, the last vendees subsequently re-conveying the property to Mumford.
There was evidence conclusively showing that all of said deeds, though absolute in form, were in fact but securities for debts of Mumford.
On the issue that the deed from Mumford to Jackson and McKay for the land in controversy was a mortgage, we think the deeds to which Jackson was a party were properly admitted in evidence as circumstances to be considered in arriving at the true nature of the transaction in connection with other evidence. But we do not think that the deeds between Mumford and other parties are admissible or proper to be considered on this issue.
On the other hand, upon the issue of Mumford’s mental incapacity we are not prepared to say that his habit of executing absolute deeds to secure debts, instead of mortgages, the usual and prudent form of such [109]*109transactions, was not a proper subject for proof, or that any of said deeds as they tended to establish such habit ought to have been excluded on the ground assigned or because they were irrelevant.
If the cause had been on trial before a jury we think the court on the objections made to the introduction of the deeds should have by its charge limited their effect as above indicated. "
As the cause was tried without a jury we may presume that the court gave the evidence only such effect as it deserved.
The record does not contain the judge’s conclusions of law or fact.
The consideration named in the disputed deed was nineteen hundred and eighty-five dollars. It was claimed that Mumford then owed Jackson about twelve hundred dollars, and as affecting the question whether the transaction was a sale or a mortgage of the property it was made a question of fact whether the consideration named in the deed was really paid.
Plaintiff, proceeding under our statute without notice, took the deposition of defendant J. W. Jackson, which he introduced as evidence.
Among other things included in his deposition Jackson testified: “I loaned Jesse Mumford 61200 on September 1,1881, and took a deed of trust on part of the Jesse Mumford league in Bell County, Texas. Daniel McKay loaned me some money on August 31,1881, which I used in this trade. It was intended that the deed dated September 1,1881, should be security for the 61200 I loaned him on that date. The deed of March 2, 1882 (which is the deed now in controversy), from Mumford and wife to McKay and myself is correct. I have the original. I let Mumford have money at different times on this purchase; can’t state dates and amounts without reference to my books. I have not my book with me; it is at home. I was not expecting to have to answer this question today. I remember paying him once or twice in the presence of his wife, and once I paid money to Doc Simmons for him. This deed was not considered by Mumford or myself as security for the money I had loaned Mumford to pay Wiley & Porter. The money loaned Mumford was part of the consideration for this deed.
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Henry, Associate Justice.
This was an action of trespass to try-title, brought by W. S. Jones as administrator of the estate of Jesse Mumford, deceased. The land in controversy is 1032 acres out of the Jesse Mumford headright league.
The petition charges that defendants assert a claim to the land under a pretended deed purporting to have been made by said Jesse Mumford and his wife Eldora Mumford to dofendants J. W. Jackson and Daniel McKay on the second day of March, 1882; that said deed purports to have been executed in consideration of the sum of $1985 paid the grantors, but in fact it was executed as a mortgage to secure the payment of a debt owing at the time by said Jesse Mumford to said Jackson and McKay, or to one of them, not exceeding the sum of twelve hundred dollars, loaned by said Jackson and McKay to said Jesse Mumford about the first day of September, 1881.
Plaintifi avers that if the evidence is insufficient to show that the deed was intended as a mortgage, it ought still in equity he held one, because at and long before the date of its execution said Jesse Mumford was an old, infirm, and weak man, both mentally and physically, embarrassed by debt and pressed by creditors; that his wife was also weak minded and incompetent; that defendants Jackson and McKay were well aware of the condition of the Mumfords and fully enjoyed their confidence.
That the land at the time said deed was executed was worth not less than ten thousand dollars; that no money was paid to Mumford at the date of its execution, the only consideration being an antecedent indebtedness; that said Jackson was then the agent and confidential adviser of said Mumford, and said McKay was an old Texas veteran, neighbor, and their pretended friend, and being such said Jackson and McKay fraudulently combined to overreach and cheat the said Jesse Mumford and Eldora Mumford out of said land, and in pursuance of that purpose procured the execution of said deed by them; that the annual rental value of the land is five hundred dollars; that Jackson and McKay have sold part of the land and appropriated the proceeds, as well as the rents of the unsold land, in all amounting to more than Mumford’s indebtedness to them; that the other defendants are chargeable with notice of all of said facts.
Plaintifi prays that either the deed be declared a mortgage, or be declared void for inadequacy of consideration and fraud in obtaining it, and that he recover the land, etc.
The defendant Benjamin E. Brown answered, claiming one hundred [108]*108acres of the land, described by metes and bounds, purchased by him under Jackson and McKay by warranty deed for a valuable consideration and without notice, and he also pleaded not guilty, and improvements in good faith.
The defendants J. W. Jackson, Daniel McKay, and George Jackson answered by demurrers, general and special, and by general denial, and also pleaded the statute of limitations of three years, possession in good faith, and valuable improvements.
The cause was tried without a jury, and the judgment of the court was in favor of Sampson Harrison on his disclaimer and in favor of Benjamin Brown for 100 acres as an innocent purchaser for a valuable consideration, and against J. W. Jackson, Daniel McKay, and G. W. Jackson for 932 acres of land, crediting claim of J. W. Jackson and Daniel McKay with $1100 received from Eads and Whittington, and giving judgment against plaintiff for $885 with eight per cent interest from and after the day the writ of possession is executed, and the 'same was a charge upon said land to be paid in due course of administration.
Plaintiff was permitted to read in evidence over the objections of defendants twelve deeds, ten of them between Jesse Mumford and other parties, and two to which Jesse Mumford was not a party directly but that had relation to his land and some of the other deeds.
Some of the ten deeds had relation to the land in controversy and some to different land owned by Mumford.
Three of the twelve deeds were transactions between Mumford and J. W. Jackson, one of the defendants in this suit. Hone of the defendants were parties to the remaining nine deeds.
The deeds from Mumford were all in the form of absolute conveyances of the title with general warranty; the deeds to him were reconveyances of the property in the same form. The deeds between other parties were conveyances by Mumford’s vendees of the property while it was in their names by the same form of conveyance, the last vendees subsequently re-conveying the property to Mumford.
There was evidence conclusively showing that all of said deeds, though absolute in form, were in fact but securities for debts of Mumford.
On the issue that the deed from Mumford to Jackson and McKay for the land in controversy was a mortgage, we think the deeds to which Jackson was a party were properly admitted in evidence as circumstances to be considered in arriving at the true nature of the transaction in connection with other evidence. But we do not think that the deeds between Mumford and other parties are admissible or proper to be considered on this issue.
On the other hand, upon the issue of Mumford’s mental incapacity we are not prepared to say that his habit of executing absolute deeds to secure debts, instead of mortgages, the usual and prudent form of such [109]*109transactions, was not a proper subject for proof, or that any of said deeds as they tended to establish such habit ought to have been excluded on the ground assigned or because they were irrelevant.
If the cause had been on trial before a jury we think the court on the objections made to the introduction of the deeds should have by its charge limited their effect as above indicated. "
As the cause was tried without a jury we may presume that the court gave the evidence only such effect as it deserved.
The record does not contain the judge’s conclusions of law or fact.
The consideration named in the disputed deed was nineteen hundred and eighty-five dollars. It was claimed that Mumford then owed Jackson about twelve hundred dollars, and as affecting the question whether the transaction was a sale or a mortgage of the property it was made a question of fact whether the consideration named in the deed was really paid.
Plaintiff, proceeding under our statute without notice, took the deposition of defendant J. W. Jackson, which he introduced as evidence.
Among other things included in his deposition Jackson testified: “I loaned Jesse Mumford 61200 on September 1,1881, and took a deed of trust on part of the Jesse Mumford league in Bell County, Texas. Daniel McKay loaned me some money on August 31,1881, which I used in this trade. It was intended that the deed dated September 1,1881, should be security for the 61200 I loaned him on that date. The deed of March 2, 1882 (which is the deed now in controversy), from Mumford and wife to McKay and myself is correct. I have the original. I let Mumford have money at different times on this purchase; can’t state dates and amounts without reference to my books. I have not my book with me; it is at home. I was not expecting to have to answer this question today. I remember paying him once or twice in the presence of his wife, and once I paid money to Doc Simmons for him. This deed was not considered by Mumford or myself as security for the money I had loaned Mumford to pay Wiley & Porter. The money loaned Mumford was part of the consideration for this deed. I have carefully examined the deed from J. W. Jackson to Jesse Mumford, dated February 27,1882. The land purporting to be conveyed therein is the land in controversy and the same land subsequently conveyed to Jackson and McKay by Mumford and wife. I executed this deed to Mumford in consideration of his making a deed to 1032 acres of land to Daniel McKay and myself. This deed was delivered to Mumford at the time he delivered the deed to McKay and myself. He did not owe me anything when I delivered the deed to him. I owed him at that time on the 1032 acres of land; don’t remember the exact amount. I paid some debts for Mumford, but can’t itemize them without my book.”
On the trial he testified in person: “I was here in Belton when sum[110]*110moned to answer the interrogatories. I wanted to get my books in order to answer fully and itemize as requested, but Mr. Tarver insisted that I should answer them at once. I live twenty miles from Belton, and my books were not accessible. I have my books with me now and can give dates and items as inquired about in said interrogatories.”
While being examined as a witness by his own counsel Jackson was asked to State the manner and circumstances of the payment of the nineteen hundred and eighty-five dollars consideration named in the deed to himself and McKay, but was not allowed to answer the question •on plaintiff objecting that he” being a defendant could not testify in this cause to a transaction between himself and plaintiff’s intestate. As a general rule this decision was correct. Unless made a witness by plaintiff he had no right to testify at all about his transactions with Mumford. But when plaintiff elected to make him a witness on the point it was his right to explain the whole transaction and tell as well what was in his favor as what was against him. It was proper for him to do so when being examined under the commission, but having offered a satisfactory reason why he could not then go into all of the details he should have been permitted to do so at the trial, his evidence being then confined to the issues upon which he had been already examined.
There was no error in excluding the evidence of the defendant McKay on the same subject, he not having been made a witness by plaintiff.
The judgment was in favor of plaintiff for the recovery of all of the land, less one hundred acres particularly described, awarding him a writ of possession. It further recited that defendants J. W. Jackson and Daniel McKay having received from the sale of the one hundred acres not adjudged to plaintiff the sum of eleven hundred dollars, they should recover of plaintiff the further sum of eight hundred and eighty-five dollars, with interest at the rate of eight per cent per annum from and after the day of the execution of the writ of possession, and that the same should be a charge upon the land until paid by plaintiff in due course of administration.
Appellants complain that the court treating their deed as a mortgage relegated them to the County Court instead of itself requiring the amount due upon the mortgage to be brought into court. They also complain that the court did not allow them compensation for permanent and valuable improvements placed on the land.
Treating the deed as a mortgage we do not think the court erred in establishing the amount due on the mortgage as a lien upon the land to be enforced in the due course of administration. When the suit to redeem is prosecuted by an administrator for the benefit of his intestate’s estate the same rule in this respect does not apply as does when the litigants are claiming in their own right.
The court seems to have set the use of the property off against interest [111]*111and the value of improvements. The correct rule would have been, we think, to have ascertained the value of permanent and benefical improvements by defendants, or rather how much such improvements had enhanced the valúe of the premises recovered, and have alldwed such value and legal interest on the amount due defendants with such unpaid amount to defendants, and to have charged them with the value of the use and occupation of the premises and the money they had received from the sale of part of the land.
As the case will be reversed and another trial had we think it improper and unnecessary to discuss other assignments of error.
The judgment is reversed and the cause remanded.
Reversed and remanded.
Delivered May 21, 1889.