(dissenting).
I am unable to record formal unanimity to this decision at the expense of strong conviction. I am in accord with the holding of my brethren on the question of “foreclosure” under the deeds. There is nothing in the record to show judicial foreclosure or transfer of the equity of redemption by any valid method. The deeds, though absolute on their face, were unquestionably mortgages.
This is not true, however, as to the corporate stock. It was pledged by Eidson to the bank. The rules governing the method of transfer of the equity of redemption applicable to realty do not apply to personalty. Apparently recognizing this, the majority have held the jury’s answers to issues S and 6 are so contrary to the overwhelming preponderance of the evidence as to be manifestly unjust.
In order to reach this conclusion, I think the majority must of necessity commit a material error of law as to the party upon whom the burden of proof rests. This is a dual suit. It is a trespass to try title action; but it is also a suit for title to and possession of corporate stock which appel-lee has held under assignment for twenty-three years. As in the case of conversion or other actions involving title to personalty, upon the plaintiff
“rests the burden of proving ownership of or right to possess the property involved. This burden lies upon plaintiff throughout the entire trial. It does not shift to the defendant upon the making of a prima facie case of ownership in the plaintiff.” 42 T.J. p. 562.
The majority improperly shifts the burden upon the showing the stock was pledged. Therefore, the rule it adopts as to circumstances being equally consistent with existence and non-existence of facts requires affirmance of the judgment, since the plaintiff has’ the continuing burden of showing superior title to the stock. In this, according to the jury, he failed. The burden of proof is not properly on the defendant to show its right. As to issues 5 and 6, the majority has held the defendant has failed to discharge a burden which never rested on it.
The power of an intermediate appellate court to declare a jury verdict contrary to the overwhelming preponderance of the evidence is one which should be exercised with scrupulous restraint, for it is not ordinarily subject to review. The jury’s answers to issues 5 and 6 present no situation such as to shock the conscience or indicate bias or obvious improper motive. A rational test for exercising the power is “would we, as a jury have to have been actuated by prejudice, sympathy or other incorrect motive in order to reach such a verdict?” Justice Garwood, 30 T.L.R. 803, 812. This case will meet no such test. The majority opinion points to circumstances which would have supported a negative answer to issues 5 and 6. The following is a summary of some of the evidence preponderating in support of the verdict:
(1) Defendant began the trial with the presumption that “possession of personal property is prima facie evidence of title to the property and the possessor will recover against the claims of anyone who fails to establish a better right in the property than that of the possessor.” 33 Tex. Jur. Sec. 9, p. 942.
(2) After the deed from Eidson to Perry was recorded in 1940, and after the latter’s conveyance to the bank, Eidson reamortized a loan secured by lien on 590 acres adjacent to the 600 acre tract in controversy. In connection with this transaction a boundary agreement was executed by Eidson and appellee, acting by Perry. This agreement recited Eidson was the owner of the 590 acres and the bank was the owner of the *694600 acres involved in this suit. It recited the “600 acres owned by the Perry National Bank adjoins the land owned by J. A. Eidson”; that the parties desired to enter into a boundary agreement consistent with the field notes “describing their respective lands.” It concludes, “The Perry National Bank claims only the lands described in the fieldnotes for said 600 acre tract.”
(3) This agreement was signed by Eidson nearly three months after the recording of an oil and gas lease executed by the bank as sole lessor, covering the 600 acres in question. Bonus and delay rentals from this lease went to the bank and not to Eidson.
(4) Appellee executed subsequent oil and gas leases on the 600 acres before Eidson’s death, and except for two payments in 1950 and one in 1945, received all bonus payments and rentals for its own account.
(5) After the execution of the boundary agreement, Eidson continued to manage and operate the 600 acres for the bank, along with his own 590 acres. He made grazing and other surface leases on the entire 1,190 acres, dividing the income into equal parts and paying one-half the revenue to the bank. This continued from 1946 to 1954 when Eidson died.
(6) The testimony of the witnesses Short, Sims, Smith, Alexander, Strickland and Allen dealt largely, if not exclusively, with circumstances and transactions occurring in 1946 or before and prior to the 1946 date fixed by the verdict. Some of the testimony clearly related to the 590 acre tract alone. The testimony of Gordon that the bank told him Eidson was “looking after” the land and managing it is clearly consistent with the conduct of the parties and the jury verdict.
(7) The testimony of Dr. Baker, quoted at length by the majority, dealt with transactions “in 1945 or ’46,” and does not militate against the jury finding as to application of the stock in April, 1946, after Eid-son’s last renewal note was due. The witness Wren was a party to the action and apparently participated as counsel during the trial. Sims’ testimony dealt with events “up till about ’44,” a time not material under the jury finding. The testimony of Perry relating to a proposed loan is not inconsistent with the jury verdict because Eidson consummated the loan only on his own 590 acres, not involved in the suit. Mr. Gordon’s testimony conforms to the conduct of the parties and the verdict, for the proceeds of the lease he prepared were divided “fifty-fifty” between Eidson and ap-pellee. Smith’s testimony dealt with the period “about ’45 or ’46.” Alexander told of events “in ’46, if memory serves me.” Harper stated he paid pasture rental on the total 1,190 acres “half and half” to appel-lee and Eidson. He testified Eidson told him about his financial difficulties and “when the bank got the land.”
(8) Several witnesses testified Eidson told them after 1946 the bank owned the 600 acres.
(9) In 1949 Eidson leased his 590 acres and at the same time the bank separately leased the 600 acres.
(10) In 1950 Eidson told Mr. Cleveland, after appellee, as sole lessor executed an oil and gas lease on the land in question, that he was glad the bank had leased its land and was glad to see appellee get something out of it.
(11) In 1946, in a transaction concerning another tract of land with one Grisham, the circumstances clearly showed Eidson regarded the land in question as belonging to the bank.
(12) The bank permitted Eidson’s note, due in 1946, to become barred by limitation — -the only case in which it had ever permitted this to occur — charged the note off;' and then, according to Manning, had difficulty in determining whether to carry the corporate stock or the real estate on its books under banking regulations. He testified appellee had the stock in its control and claimed ownership. He testified *695there was never any disagreement or misunderstanding between Eidson and appel-lee about the land or corporate stock.
(13) The jury returned a negative answer to the issue as to whether Eidson, either in person or through tenants, held adverse possession after 1940. This finding is admittedly supported by the evidence, and appellants do not challenge it.
(14) The witnesses Strickland and Mc-Anelly testified they leased the land in question directly from appellee on separate occasions.
After 1946, the date fixed by the jury verdict, on or before which the pledged stock was applied to satisfaction of Eidson’s note, the entire course of conduct of the parties shows Eidson treated the 600 acres as belonging to the bank.
The basic question of law on which I differ with the majority is in the construction of the pledge agreement, by which the stock was placed as collateral. It authorized appellee to sell the security without notice or judicial proceedings at public or private sale. It did not, however, require a sale. There is nothing precluding application of the stock to satisfaction of the debt by consent. Appellant had the burden of vitiating appellee’s acquisition of the stock. The evidence clearly supports the finding that the bank applied the stock with Eidson’s knowledge and implied consent. Appellant, having the burden, requested no further issues, and under Rule 279, Texas Rules of Civil Procedure, there is evidence to support any omitted issues relating to the ground, deemed found in support of the judgment.
The majority overlooks the fact that the only two persons who could testify positively as to their dealings (Perry and Eid-son) were dead long before the trial. They were intimate friends, were both organizers of the bank and obviously dealt with each other informally. It is apparent that frequently Eidson managed the 600 acre bank tract (as agent or tenant) and the 590 acres of his own, jointly and as a single tract, for their mutual advantage and convenience.
There is nothing in this record to even remotely suggest that Eidson ever claimed possession or asserted any title to the stock during the almost quarter of a century from 1931 until his death in 1954.
By showing ownership of 443 shares of the stock, appellee established title to 443/500 interest in the land, for which the trial court properly rendered judgment. Humble Oil & Refining Co. v. Blankenburg, 149 Tex. 498, 235 S.W.2d 891, 895.
The judgment should be sustained on another basis: The boundary agreement mentioned above, in which Eidson declared appellee owned the 600 acres in question, whether regarded as a muniment of title, or as a basis for estoppel or collateral concepts of ratification, abandonment or disclaimer and the like, was a solemn declaration by the parties and their privies in a recorded instrument of legal dignity, expressly negativing appellants’ claim. By it, in my opinion, they are bound. Eylar v. Eylar, 60 Tex. 315, 320; Havard v. Smith, Tex.Civ.App., 13 S.W.2d 743, Syl. 1-3; Bennett v. Romos, 151 Tex. 511, 252 S.W.2d 442, 445; Matthews v. Houston Oil Co., Tex.Civ.App., 299 S.W. 450; Henderson v. Book, Tex.Civ.App., 128 S.W.2d 117, writ ref.; Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 583, 136 A.L.R. 626; Williams v. Hardie, 85 Tex. 499, 22 S.W. 399, 401. The least that can be said of it is that it is clear, positive and affirmative evidence supporting the verdict and judgment.
The majority opinion states that it is thought the great preponderance of the evidence is to the effect that Eidson was using, occupying and controlling the property ; and that the evidence conclusively shows that Eidson was exercising dominion and control, using and enjoying the tract during the time inquired about in Issue No. 5. The jury’s answer to Special Issue No. 1 is not attacked by appellants. Appellants have presented no point that the an*696swer to Special Issue No. 1 was contrary to the overwhelming preponderance of the evidence nor, indeed, is there any assignment relating to this finding. Since our action has not been invoked with respect to this issue, I think it should stand as an additional basis for an affirmance. I would affirm.