Byars v. Byars

• Citation: 32 S.W. 925
• Parties: BYARS et ux. v. BYARS.
• Decision Date: 29 November 1895
• Court: Texas Court of Appeals

32 S.W. 925

BYARS et ux. v. BYARS.

Court of Civil Appeals of Texas.

November 29, 1895.

Appeal from district court, Brown county; J. O. Woodward, Judge.

Action by J. F. Byars and wife against Sallie Byars. There was a judgment for defendant, and plaintiffs appeal. Affirmed.

O. R. Sholars, for appellants.

Statement of Case.

FISHER, C. J.

Appellants (plaintiffs below) sued appellee in trespass to try title for 100 acres of land situated in Brown county, and also for cancellation of a certain deed executed by appellants to their son M. J. Byars, deceased, the husband of appellee, conveying to him the land in controversy, May 12, 1890. The deed recites a cash consideration of $1,250 paid by M. J. Byars to his grantors. Appellants, as grounds for relief, aver that the consideration stated in the deed was not in fact paid, and is not the true consideration for the execution and delivery thereof, but it was executed and delivered in consideration and upon the condition that their son M. J. Byars should care for and administer to the wants of appellants in their old age, as their condition and necessities might require, and that M. J. Byars died on the 21st of July, 1893, and up to the time of his death, and after, he, or any one for him, had never contributed towards the support of appellants, or administered to their several wants, but upon the contrary the appellants (before his death and since) are not aged or decrepit, and were not in need of the services and aid of the said M. J. Byars, and the circumstances have not arisen that called for the execution of the consideration upon the part of said M. J. Byars, and that by reason of his death it has become impossible for him to comply with the conditions upon which the deed was executed, and therefore the consideration thereof has wholly failed; that his estate is insolvent, and there is no administration thereon, and no necessity for any. The defendant, in her answer, pleaded not guilty, and that she was lawfully married to M. J. Byars in the month of March, 1890, and that the land in controversy was before the death of her husband their homestead, and that it was and is occupied as such, and that she has no other homestead; that the consideration for said deed has been fully paid. She also pleaded the three-years statute of limitations. The case was tried before the court, and judgment rendered in favor of appellee, —that appellants take nothing by their suit.

Findings of Fact.

We find the following as the facts in the case: The land in controversy was the property of appellants, J. F. and Sarah C. Byars, husband and wife, before they conveyed to M. J. Byars. May 12, 1890, they conveyed by a general warranty deed the land in controversy to their son M. J. Byars. The deed expressed a consideration of $1,250 cash in hand paid by M. J. Byars. There is no other consideration stated or expressed in the deed, nor is there any reservation of title, upon any condition whatever, there stated; but the deed is, in form, an absolute and unconditional conveyance of the fee in the land. M. J. Byars was the son of the grantors of said deed, and he died intestate July 21, 1893, and left surviving him appellee, his wife. There are no surviving children of M. J. Byars and wife; no administration upon his estate, and no necessity for any. The estate is insolvent. The appellants, the grantors in the deed to M. J. Byars, were not needing his assistance during his lifetime or since; nor are they decrepit, or of such age as to need help. J. F. Byars at time of trial was 65 years of age, and his wife, Sarah, 60 years of age. M. J. Byars, before his death, stated and admitted to witness Bid Byars that the consideration for the conveyance in question was that he was to take care of and look after J. F. and Sarah Byars, and to contribute to their necessities, in their old age, if it ever became necessary. This evidence is not contradicted, except in so far as a contradiction may arise from the face of the deed in question. There is no express evidence showing that appellee and her deceased husband were married before the deed in question was executed, in May, 1890, but the appellee alleges that they were married in March, 1890; and as there is no question raised on this point, and as the judgment below was not questioned for this reason, and as the allegation as to the time of her marriage is not questioned, and as the plaintiffs also allege the marriage, and as the burden was upon them to show facts that authorized a recovery, we will treat the appellee as being married to her deceased husband prior to the date of the deed in question.

Opinion.

There are several assignments of error based upon the refusal of the court to admit parol evidence tending to prove the consideration for the conveyance, and the condition upon which it was executed, as alleged by the appellants. The effect of this evidence, if admitted, would be to show that the consideration was that the grantors, in their old age, if it became necessary, should be cared for and supported by the grantee, and that this was solely the consideration and condition upon which the deed in question was executed. It will be seen, from the facts as stated, that some evidence upon this point was admitted. It will be observed that the effect of this evidence would be to destroy by parol the recital of fact stated in the instrument concerning the consideration, and substitute therefor not only an entirely different consideration, but, in addition, ingraft upon a conveyance absolute and unconditional in form a lesser estate, that was dependent upon conditions subsequent that may defeat the legal effect of the deed upon the happening of the contingency stated in the evidence. The questions to be determined are, can a deed absolute in form, where fraud or mistake are not the bases for relief against its express terms, be controlled or defeated in its legal effect by parol evidence that tends not only to show a failure of consideration, or a different consideration than that recited, but, in addition, establishes facts that show contractual obligations resting upon the grantee, the nonobservance of which may defeat the estate, these obligations being in the nature of conditions subsequent, which, upon failure to perform, may entitle the grantors to assert this fact in order to defeat the estate conveyed by the deed? If the question before us was one in which the purpose was solely to explain by parol evidence that part of the deed that acknowledges the receipt of a given sum as the consideration for its execution (Pool v. Chase, 46 Tex. 210; Glenn v. Mathews, 44 Tex. 406), or to create a trust upon the legal estate (Clark v. Haney, 62 Tex. 511), or, in order to preserve the equity of redemption, establish that the instrument was a mortgage (McLean v. Ellis, 79 Tex. 399, 15 S. W. 394; Eckford v. Berry [Tex. Sup.] 28...