Burch v. Smith

• Decision Date: 01 January 1855
• Citation: 15 Tex. 219
• Parties: ELLISON BURCH AND WIFE v. JOSHUA F. SMITH AND WIFE.
• Court: Texas Supreme Court

15 Tex. 219

ELLISON BURCH AND WIFE

v.JOSHUA F. SMITH AND WIFE.

Supreme Court of Texas.

1855.

Fraud may be proved either by intrinsic evidence of unfairness in the transaction itself, or by evidence of facts and circumstances attending it, which, by the ordinary tests by which we judge of the motives to action, appear inconsistent with an honest purpose. [1 Tex. 326;18 Tex. 318.]

Though mere inequality in a bargain, or inadequacy of consideration, does not, of itself, afford a distinct ground for annulling a contract, yet there may be such an unconscionableness or inadequacy in a bargain as to demonstrate some gross imposition or undue influence; and where such unconscionableness or inadequacy is such as to shock the conscience, it is conclusive evidence of fraud.

Appeal from Travis. On the 4th of June, 1850, in the county of Fayette, in this state, Sarah Ann Burnham, widow of Alfred Burnham, in consideration of two hundred and fifty dollars, acknowledged to have been received, conveyed by writing under seal, to Sarah Burnham, of the county and state aforesaid, “all and singular, my right, title, interest, claims or demands, in esse, or in expectancy, as widow or surviving wife of the said Alfred Burnham, deceased.” On the 22d of May, 1852, the said Sarah Ann brought this suit to set said conveyance aside on the ground of fraud.

The plaintiff's evidence was that she was married to Alfred Burnham, the defendant's brother, in Tennessee, in 1849; that Burnham lived in Fayette county, Texas, at the time; that he died at New Orleans on his way home, in the winter of 1849-50; and that plaintiff came on to Fayette county, Texas. A witness for plaintiff testified as follows: “I heard the defendant say she had bought plaintiff's interest in her husband's estate, and that she would get a note or notes from Mr. Denison, and pay it or them to plaintiff for her interest. I prepared to leave on the 7th of June, 1850, and plaintiff was to go with me (back to Tennessee). She desired me to go with her to defendant's house to get the pay for her interest. I went with her to defendant's house, and she, defendant, told plaintiff that Mr. Baker was to have been down before then and brought the note or notes. The plaintiff told defendant that she was bound to start next morning with me; that she had come down for her pay and wanted it. The defendant still said that Mr. Baker was to have been down with the note or notes, and that she was then looking for him. We stayed in her house till quite late in the evening. Baker not coming, we left, and met Baker after night, and called on him for the note or notes, and he said that he had come off and forgot them. The plaintiff left with me on the 7th of June, 1850, and never got her pay before she left, nor while she was with me. She had $170, which she told me was all the money she had in the world. My grandfather and the father of the plaintiff were brothers.” The plaintiff introduced the inventory and appraisement of the property of the estate of the said Alfred Burnham, deceased, which amounted to $1,873.57; it was dated in May, 1850, and was returned by Sarah Burnham, administratrix, etc. The plaintiff also introduced in evidence the deed from herself to the defendant. This was all the testimony introduced by the plaintiff.

The defendant then introduced her own answers to interrogatories propounded by the plaintiff, which the latter had declined to read in evidence, as follows: It is not true that I did not perform the contract between myself and the plaintiff, with reference to her interest in the estate of Alfred Burnham. The plaintiff came to my house in Fayette county about the middle of January, 1850, claiming to be the widow of my deceased brother, Alfred Burnham. After some time the plaintiff made application to the county court of Fayette county for letters of administration upon the estate of Alfred Burnham. Afterwards the plaintiff became dissatisfied with her act, and declared to me that she would not stay in Texas two years for her interest in the estate, and proposed to me to sell out her interest. This I did not want to buy, inasmuch as the estate of my brother was considerably incumbered with debt, and had only personal property belonging thereto, and I did not know whether the interest of the plaintiff was worth much to me. I at last agreed to give the plaintiff for her supposed interest, two hundred and forty dollars, as follows: To pay a debt plaintiff owed to one Thomas L. Denison, of forty dollars, and to procure from said Denison, if I could, an order on one Thomas Mosely, in favor of the plaintiff, for the remainder; but if Denison would not let me have the order or note on Mosely, then I was to give my own note for said remainder, to be paid by me to plaintiff, upon final settlement of the estate. This occurred at my house sometime about the last of March or the first of April. A further stipulation in the above contract of sale was, that the plaintiff should prove before the court her marriage with Alfred Burnham, as a condition precedent to the performance of the contract on my part, and prove up a debt she said she held against Mr. Burnham, of $240, in order that I might secure the interest passing by the contract from her. This the plaintiff found she was unable to do in Texas, and thereupon this part of the contract was so changed, that the plaintiff, when she returned to Tennessee (where she was about going), should send to me proper evidence of her marriage with Alfred Burnham, and I was then to execute my note for said remainder, as before stated; and upon this understanding, the plaintiff, of her own free will and accord, executed to me a quit-claim deed for her supposed interest in Alfred Burnham's estate; and I paid to Denison the forty dollars, and stand ready to pay to the plaintiff the remainder of the above sum, as stated, whenever she complies with her contract with me in reference thereto.

The interest of the plaintiff is exceedingly difficult to determine. There was but little, if any, community property; besides, the estate was heavily incumbered with debt. There was no land and no homestead, and I consider that I have made nothing more than to get the control and management of my brother's children, instead of this being committed to a stranger. The administration is not yet closed, and there must be other sales to pay...