Gibson v. Fifer

• Decision Date: 01 January 1858
• Citation: 21 Tex. 260
• Parties: MARGARET GIBSON, ADM'RX, v. JACOB FIFER.
• Court: Texas Supreme Court

21 Tex. 260

MARGARET GIBSON, ADM'RX,

v.JACOB FIFER.

Supreme Court of Texas.

1858.

That parol evidence is admissible to show, notwithstanding the acknowledgment of the receipt of the purchase money in a deed, that the money was not in fact paid, is well settled. 6 Tex. 174.

Where no money was paid, and a deed was made upon an executory contract on the part of the grantee to be performed in future, but which he did not perform, the motive and inducement to the making of the deed fail.

Where there is evidence of mental weakness in the grantor, and of undue influence over him on the part of the grantee, and that he was overreached in the transaction, the conveyance will be set aside and the property restored.

In so far as an action seeks the rescission of a sale upon the ground of non-performance of executory undertakings by the grantee, it is not within the operation of the statute of limitations, but must be governed by the analogies of the law applicable to like cases. The same time in general ought to be allowed for bringing an action to rescind, as for the specific performance of a contract.

Where a deed is made in consideration of an executory undertaking to be performed in future, limitation does not begin to run until after the breach of such undertaking, on the part of the grantee in possession.

Where rescission of a sale is sought, and the wife, who had a community interest in the land when sold, died before suit was brought for this purpose, leaving heirs, such heirs are not necessary parties to such suit; and a judgment in such case in favor of the surviving father would not be conclusive of any rights of the children of the deceased wife as against him.-- Tex. 129; 12 Tex. 95;15 Tex. 394;18 Tex. 113;24 Tex. 345.

Appeal from Goliad. Tried below before Hon. James Webb.

This was a suit brought to set aside a deed made by appellee to appellant's intestate, upon the following allegations: Appellee alleged in his petition, that about the 1st of March, 1843, he executed a deed of conveyance to Gibson for one-half of his headright league of land; that the consideration named in said deed, of one thousand dollars, was nominal and never paid; that the inducement to make said conveyance was the promise, agreement and undertaking on the part of said Gibson to take charge of appellee's three children, to raise, educate and support them until they became of age; that the intestate Gibson entered upon and took possession of the land in 1847, and has held possession ever since; that Gibson took charge of the children and kept them four or five years, but wholly failed to perform his undertakings in respect to them, and that when he was requested to do so that he drove the children, still minors, from his house. Appellant, who was made a party as administratrix, after the death of Gibson, excepted to the petition. 1st. Because the administratrix of Gibson is alone made a party without showing that her intestate left no heirs. 2d. Because the children of the plaintiff are the real beneficiaries and necessary parties; which were overruled. Appellant then answered: 1st. Not guilty. 2d. Limitation of two years as to the allegation of fraud in procuring the deed. 3d. Limitation of two years as to the allegation of parol agreement. 4th. Limitation of three years under title and color of title.

The appellee, on the trial, offered witnesses to prove the motive and inducement to the making of the conveyance, and that no money was ever paid, which was objected to by appellant, and the objection overruled; their evidence proved very clearly that the transaction was substantially as set out in the petition, and the breach of the undertakings of the appellant.

The evidence on the part of appellant showed the patent and the assignment on it, and a deed for the undivided half of the league of land, the possession by Gibson from 1845 or 1846, and some rebuttals of the appellee's evidence in regard to the treatment of the children; also that appellee's wife died before the contract, and that he occupied part of the premises by permission of Gibson.

The court, among other charges not material to be stated, gave the two following: “If the jury find from the evidence, that the defendant's intestate went into and held possession of the land in controversy, under the executory contract set out in the plaintiff's amended petition, then the statute of limitations did not run in favor of the defendant against the plaintiff, and could not be invoked until the precedent condition of supporting, clothing and educating the children had been performed, unless they believe that the plaintiff prevented its performance by taking away his children. In that event the statute would begin to run in support of defendant's possession from the time the contract was thus broken.”

“If the jury find from the evidence, that the defendant's intestate did make such a contract or agreement with the...