(dissenting).
I would affirm the judgment of the trial court. In my opinion Issue No. 15 required the jury to find a legal conclusion.
If there was a conditional sale the terms of such sale were those contained in the letter referred to in the majority opinion. There was no evidence that any other conditions were agreed upon as to a conditional sale. Appellant testified that the letter contained the agreement. Mrs. Sam-mons testified that the October 31, 1946 deed was, like the other deeds, security for what they owed Hancock, and that she never agreed with appellant or anyone else to sell any of her land (the land involved was her separate property), and never authorized her husband or anyone else to agree to a sale of her land. Although she read the deed reciting a consideration of $10, nobody explained to her that she was selling her land to Hancock and she did not see the letter until at least a month after the date of the deed. In other words, ap-pellees contended there was no agreement whatever except that the land would be reconveyed to them when the oil runs had paid out their indebtedness to appellant.
Appellant’s claim of a conditional sale was based wholly on the terms of the heretofore mentioned letter. In answering “No” to Issue No. 16 the jury found against appellant on the only set of facts which could uphold his contention of a conditional sale.
Whether or not there is a conditional sale or mortgage is a matter to be determined by the court based on the fact findings of the jury or of the court sitting as trier of the facts. It is often exceedingly difficult to determine whether a particular transaction is a mortgage or a conditional sale. Ruffier v. Womack, 30 Tex. 332. Whether an instrument or instruments constitute a conditional sale or mortgage de*259pends upon the construction placed by the law upon the real agreement between the parties. Issue No. IS asked the jury for a legal conclusion. The jury should not be required to answer a legal question which has been the source of so much difficulty to the courts. Whether there was a conditional sale was a question of law for the court to determine from the facts found. The jury found in answer to Issue No. 16 that the only basis for a conditional sale as contended by appellant did not exist. The facts necessary to constitute a conditional sale being found against appellant by the jury, the only thing left in his favor was a conclusion of law by the jury that -the parties intended the transaction to be a conditional sale. The answer to Issue No. 15 being a conclusion of law, it was not binding on the court and he was authorized to disregard same. Gowan v. Reimers, Tex.Civ.App., 220 S.W-2d 331; 41-B Tex.Jur., p. 498, sec. 403.
I,therefore, respectfully dissent.