Holt v. Gordon

• Decision Date: 27 January 1912
• Docket Number: (No. 7167.)
• Citation: 176 S.W. 902
• Parties: HOLT v. GORDON.
• Court: Texas Court of Appeals

176 S.W. 902

HOLT v. GORDON.

(No. 7167.)

Court of Civil Appeals of Texas. Ft. Worth.

January 27, 1912.

Rehearing Denied May 1, 1915.

Appeal from District Court, Erath County; W. J. Oxford, Judge.

Action by R. T. Holt against F. J. Gordon. Judgment for the defendant, and plaintiff appeals. Reversed and remanded on rehearing granted on appellant's motion, and appellee's motion for rehearing denied.

See, also, 174 S. W. 1097.

J. C. George, of Brownsville, and J. A. Johnson, of Stephenville, for appellant. J. B. Keith, of Stephenville, for appellee.

DUNKLIN, J.

R. T. Holt executed a deed in favor of F. J. Gordon purporting to convey 60 acres of land. The deed recited a total consideration of $2,800, of which amount $1,300 was recited as cash paid, but which was not paid, and the balance was evidenced by two promissory notes for $750 each. At the time the deed was delivered to Gordon he executed and delivered to Holt the two notes for $750 each. September 28, 1906, was the date of this transaction between Holt and Gordon, and at that time Gordon owned another tract of 212 acres, which was the homestead of himself and family. On November 1, 1906, Gordon executed his promissory note for $1,300 in favor of Holt to cover the item in that amount recited in the deed as cash paid, and at the same time executed a deed of trust on the 212-acre tract to secure its payment.

Holt instituted this suit to recover the amount of all three of the notes mentioned, and to foreclose his vendor's lien on the 60-acre tract described in the deed to Gordon, and also the lien evidenced by the deed of trust upon the other tract, and from a judgment in favor of Gordon, the plaintiff has appealed.

By special answer to plaintiff's petition Gordon alleged that prior to the execution of the deed by Holt the 212-acre tract was the homestead of himself and family; he desired to purchase another home nearer the town of Bluffdale, in order that he might educate his children; the 60-acre tract referred to above was such a location as the defendant desired, and plaintiff was offering to sell it, but the defendant had no money with which to make the purchase; plaintiff was conversant with all of these facts, and entered into a parol agreement with the defendant by the terms of which plaintiff would execute the deed to the 60 acres in the form it was executed; the defendant would execute his two notes in favor of the plaintiff for $750 each; defendant would then move upon the 60-acre tract, and thus make it appear that he had abandoned his homestead claim upon the 212-acre tract; thereafter defendant would procure a loan upon the 212-acre tract, and with the funds thus realized would pay to the plaintiff the $1,300 recited in the deed as a cash consideration. The defendant further alleged that prior to and at the time the deed and notes were executed it was further agreed in parol by and between him and the plaintiff that none of the instruments so executed and delivered would become operative and binding upon the respective makers unless defendant should succeed in procuring a loan upon the 212-acre tract after he had moved therefrom; defendant did move upon the 60-acre tract, but thereafter was unable to procure a loan upon the 212-acre tract, whereupon he abandoned the 60-acre tract, and removed to the 212-acre tract; after removing to the 212-acre tract, he tendered back to the plaintiff the 60-acre tract, and in his answer he tendered title to the same to the plaintiff with the prayer that the same be decreed in the plaintiff. By reason of the facts so pleaded the defendant alleged that neither the deed, nor the notes, nor the deed of trust, ever became operative, and therefore were without any legal force or effect. Gordon did not plead fraud, accident, or mistake in the execution of any of the instruments, excepting a plea of fraud in the procurement of the deed of trust, as hereinafter shown.

Plaintiff objected to testimony which was offered upon the trial in support of the allegations in the answer noted above, and those objections were overruled. Those rulings, and also the charge of the court submitting that defense to the jury are assigned as error. The proposition presented by the objections urged to that testimony, and by the assignment predicated upon the charge, is that defendant sought to vary the terms of the written instruments without any plea of fraud, accident, or mistake as a basis therefor, by evidence of parol agreement between the parties prior to, and contemporaneous with, the execution of those instruments, and to permit him to do so would be in violation of the rules of evidence. In Encyc. of Evidence, vol. 9, p. 353, the following is said:

"Parol evidence is admissible which tends to show that an instrument was never, in fact, delivered as a present contract, unconditionally binding according to its terms from the time of delivery, but that it was delivered to become an absolute obligation upon the happening of a certain event or contingency, and that such event or contingency has never occurred. Such evidence does not contradict or vary the terms of the writing, but tends to show that the instrument has never had any legal inception rendering it valid and binding as between the parties."

This announcement of the law is well sustained by numerous decisions cited in the text referred to, notably the case of Burke v. Du Laney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698. And this rule is the basis of many decisions of our own courts, in effect, that one who signs and delivers a written obligation as a surety with the understanding between himself and the payee that he is not to be bound thereby unless another surety is procured, and no other surety signs the obligation, cannot be held liable...