(dissenting).
I do not agree with the holding of the majority that the implied finding of the trial court to the effect that the warranty deed in evidence was what it purported to be on its face, an absolute conveyance of the land in controversy, was against the great weight of the evidence, and that for this reason the judgment must be reversed and the cause remanded.
The appellants undertook to prove that the deed, regular on its face, signed, acknowledged and recorded, was not what it purported to be, but was only a mortgage on the business homestead of Guadalupe E. Barrera and his wife, Cruz G. Barrera. The deed was executed by the Barreras on November 26,1957. On January 10, 1958, Barrera committed suicide. Three days after the date of the deed, F. C. Gonzalez executed a lease and had it recorded, allowing the Barreras to remain in possession of the land, rent free, until July 26, 1958. This suit was instituted on May 16, 1959, in the form of trespass to try title. The appellants answered setting up, among other things, that the deed regular on its face was intended by the parties as a mere mortgage. Guadalupe E. Barrera was, of course, dead at the time of the trial, and appellants undertook to prove that the deed was merely a mortgage by circumstantial evidence.
Where a party undertakes to prove that a deed to land, while regular in every respect on its face, was in truth and in fact merely a mortgage, he must do so by evidence which is clear, unequivocal and convincing, because otherwise the natural presumption that it is what it purports to be will prevail. Griswold v. Citizens Nat. Bank in Waxahachie, Tex.Civ.App., 285 S.W.2d 791.
The consideration recited in the deed was $10 cash “and other valuable considerations,” and the assumption by Gonzalez of the balance of the indebtedness owing by the Barreras to G. & G. Lumber & Hardware Company. There was no mention in the deed of the $1,030 note, or the 14,560 Pesos note. Concerning these notes Gonzalez testified as follows:
“Q. Now, these (referring to the above two notes) are still owing to you, are they not? A. Well, not owing to me now, because he has already paid by this deed, warranty deed.
“Q. In fact, you would like to collect all or something on these debts, *707would you not? A. Well, not — not collect them any more, because they are already paid by this warranty deed.”
It is true that two of Barrera’s brothers testified that about three days after Guadalupe committed suicide, Gonzalez sent for them and told them that Guadalupe owed him some money on some notes, and if he could have back the amount of the notes he would return the deed to the property. Gonzalez denied that he made such a statement and the trial court gave weight to his testimony.
With reference to insurance money being used to pay off the G. & G. Lumber & Hardware Company note, the evidence is not very clear. It seems that G. & G. did some work on the filling station involved and took Guadalupe Barrera’s note in the sum of four or five thousand dollars. This note was sold to the bank at Roma. The bank held insurance to secure the payment of the note in case of the death of Barrera before the note was fully paid. When Barrera died the insurance company paid the bank the balance due on the note. This sheds very light light on whether or not the deed was what it purported to be, or was merely a mortgage on the homestead.
I cannot agree that the trial court’s implied finding that the instrument was what it purported to be, a warranty deed, was “against the great weight of the evidence.” The burden of proof was upon appellants to show by the evidence that the deed, while regular on its face, was in fact a mortgage on the Barrera homestead.
It was the duty of the trial court who heard the witnesses testify and observed their conduct on the witness stand to, pass upon the weight and credibility of their testimony, and we are bound by his implied finding to the effect that appellants failed to prove by clear, unequivocal and convincing evidence that the deed was intended by the parties only as a mortgage. McDonald, Texas Civil Practice, Vol. 4, p. 1301, § 16.10; Clifton v. Koontz, Tex., 325 S.W.2d 684; Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97; Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792; Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286; Cavanaugh v. Davis, 149 Tex. 573, 235 S,W.2d 972.
I respectfully dissent.