Turner v. Biscoe, 2461-8055.

• Decision Date: 28 April 1943
• Docket Number: No. 2461-8055.,2461-8055.
• Citation: 171 S.W.2d 118
• Parties: TURNER v. BISCOE et al.
• Court: Texas Supreme Court

Page 118

171 S.W.2d 118

TURNER v. BISCOE et al.

No. 2461-8055.

Commission of Appeals of Texas, Section A.

April 28, 1943.

Rehearing Denied May 27, 1943.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by Sallie Turner against Ogden Porter Biscoe and others, in trespass to try title and for cancellation of a deed executed by plaintiff to the named defendant. From a judgment denying recovery, the plaintiff appealed to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 164 S.W.2d 70, affirming the trial court's judgment, the plaintiff brings error.

Judgment of the Court of Civil Appeals affirmed.

Jones & Jones, of Mineola, for plaintiff in error.

John D. Glass, of Tyler, for defendants in error.

HICKMAN, Commissioner.

This suit was instituted by Sallie Turner against Ogden Porter Biscoe and those claiming under her as an action in trespass to try title and in a separate count for the cancellation of a deed executed by Sallie Turner to Ogden Porter Biscoe. Sallie Turner will be referred to as plaintiff and Ogden Porter Biscoe as defendant. Upon the verdict of the jury in answer to special issues the trial court rendered judgment that plaintiff take nothing and that judgment was affirmed by the Court of Civil Appeals. 164 S.W.2d 70.

The deed sought to be cancelled was executed on March 23, 1938. It recited a consideration of $10 cash "and the further agreement on the part of grantee to take care of and support me during the remainder of my life." Fraud was sought to be established upon the ground that at the time the deed was executed and delivered the defendant had no intention to perform the covenant just quoted. In answer to special issues the jury found that the defendant had not performed the covenant, but that she intended to perform same at the time plaintiff deeded the land to her. Upon such verdict judgment was rendered that plaintiff take nothing. In her motion for a new trial the plaintiff alleged misconduct of the jury. After a hearing the motion for new trial was overruled and the defendant appealed. The Court of Civil Appeals did not decide the question of misconduct of the jury. It concluded that the defendant's request for an instructed verdict at the close of the evidence should have been granted, and upon that ground affirmed the judgment of the trial court. Manifestly, if the Court of Civil Appeals was correct in its conclusion, then, as held by it, the question of jury misconduct became immaterial.

After mature consideration of the evidence as a whole, viewed in the light most favorable to the plaintiff, we are well convinced that the Court of Civil Appeals correctly concluded that no issue of fraud was raised by the evidence.

The governing principles of law are familiar. A person's intention is a matter of fact. When a promise is made the promisor expressly or by necessary implication states that he then has a present intention to perform, and if such intention does not actually exist at that time, a false statement of fact has been made upon which fraud may be predicated. The gist of the fraud is deception as to an existing fact, namely, the state of the promisor's mind. That fact may be established by circumstantial evidence taken in connection with the breach, but cannot be established by the breach alone. The fact of breach, standing alone, does not even raise the issue of lack of intention to perform at the time the covenant was entered into. Chicago, T. & M. C. R. Co. v. Titterington, 84 Tex. 218, 19 S.W. 472, 31 Am.St.Rep. 39; Sisk v. Random, 123 Tex. 326, 70 S. W.2d 689; 14 Tex.Jur. p. 805, 806, Sec. 48; 23 Am.Jur., Fraud and Deceit, Sec. 38.

There being no evidence in the record which, to our minds, raises the issue of fraud, necessarily there is but little to...