Bigham v. Bigham

• Decision Date: 06 June 1882
• Docket Number: Case No. 3343.
• Parties: M. S. BIGHAM ET AL. v. S. W. BIGHAM.
• Court: Texas Supreme Court

57 Tex. 238

M. S. BIGHAM ET AL.

v.S. W. BIGHAM.

Case No. 3343.

Supreme Court of Texas.

Jun. 6, 1882.

APPEAL from Bell. Tried below before the Hon. J. P. Osterhout.

The opinion states the case.

A. J. Harris, for appellant.

W. S. Homan, for appellee.

STAYTON, ASSOCIATE JUSTICE.

This action was brought by S. W. Bigham against M. S. Bigham and R. J. Bigham, his wife, upon a breach of warranty in the sale of land, to recover the purchase money and costs of a suit in which the title of the appellants had been adjudged invalid.

At the time of the sale of the land by appellants to appellee, they had an outstanding executory contract to convey the land to one Winnard, who had not made full payment therefor, but had made valuable improvements thereon, and he, in the suit instituted against him, paid the purchase money and was adjudged title.

There are collateral questions in this case not necessary to be stated to present the real questions involved.

Amongst other defenses, the appellants alleged that the appellee knew the condition of the title to the land at the time they sold to him, and of the outstanding executory contract with Winnard, and that he in fact bought only their right in the land, with an understanding that, although they made a deed to him with covenant that they had good title and right to convey, and with covenant of general warranty of title, that they were not to be bound by or in any way liable thereon.

They further alleged that M. S. Bigham was weak-minded and hard of hearing, and hardly capable of attending to business, and that the appellee induced them to make to him a warranty deed upon the representation that it was necessary for him to have such a deed in order to recover the land from Winnard; that a quit-claim would not be sufficient for that purpose; and that it was agreed at the time the deed was made, that the appellants should not be held bound by their warranty in case of failure to recover the land from Winnard.

All of the facts set up in the answer of appellants were negatived in the pleadings of appellee, in so far as the same set up facts to avoid the legal effect of their general warranty deed.

Appellants introduced evidence tending to show that appellee made the representations set up in their answer, but offered no testimony showing any incapacity in M. S. Bigham whatever, except that his hearing was bad.

It appeared that the appellants knew the contents of the deed at the time they signed the same.

The appellee introduced evidence negativing that offered by the appellants in regard to representations made at the time the deed was executed.

The court in effect charged the jury to find for the appellee if appellants executed the warranty deed as alleged, and had received the purchase money, and there had been a breach of their warranty.

There was some evidence tending to show that the appellee, at the time the deed was made to him, undertook at his own expense to prosecute the suit against Winnard, and the court charged the jury, if they found that to be true, not to find for the appellee any sum incurred in prosecuting that suit.

Appellants asked the court, in effect, to charge the jury that such misrepresentations as they had set up in their answer would avoid their liability upon their warranty.

This charge the court refused to give. There was a verdict that the appellee was entitled to certain notes which he had transferred to appellants in part payment for the land, and for a horse, which constituted the residue of the payment for the land, or for the value of the horse, which was fixed by the verdict. Upon this verdict there was a judgment in favor of appellee against R. P. Bigham, who was the maker of the notes transferred by appellee to appellants in part payment for the land, R. P. Bigham having been made a party to the suit. There was also a judgment against the appellants for the horse, or its value, and for costs.

The main question in the case arises upon the refusal of the court to instruct the jury that the alleged misrepresentations, if proved, would avoid the liability of appellants upon their warranty.

The effect of the ruling of the court was to withdraw from the jury the evidence relating to the matters set up in defense, and we will consider the propriety of that ruling.

The deed to appellee upon its face was a general warranty deed, and unless parol evidence was admissible for the purpose of contradicting it and varying its legal effect, there was no error in the action of the court.

The general rule is nowhere more clearly stated than by Mr. Greenleaf in his work upon evidence. “Where parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversations or declarations at the time when it was completed, or afterwards, as it...