Ascension v. Saenz

POPE, Justice.

Appellants, plaintiffs below, contend that a deed was intended as a mortgage. The *267trial court held that the instrument was a deed. We must determine (1) whether appellants’ pleadings gave fair notice of the issue stated above, (2) whether their points in the brief preserved the issue, and (3) whether the proof, as a matter of law, established appellants’ contention.

Appellants, Jose Ascension and Mary Gomez Ascension, husband and wife, on January 4, 1957, entered into a written installment contract with G. W. Wilkinson by which they agreed to buy and he to sell Lot 2, Block 5,…