Oliver v. Corzelius
| Decision Date | 24 June 1948 |
| Docket Number | No. 4576.,4576. |
| Citation | 215 S.W.2d 231 |
| Parties | OLIVER et al. v. CORZELIUS. |
| Court | Texas Court of Appeals |
Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
Suit for specific performance by Curtis F. Corzelius against Ann Yates Oliver and Robert H. Oliver to deed certain lands and personal property to plaintiff. From a decree for plaintiff the defendants appeal.
Judgment reversed and rendered.
Kemp, Smith, Brown, Goggin & White and Frank B. Clayton, all of El Paso, and Wilson & Wilson, of San Angelo, for appellants.
Jones, Hardie, Grambling & Howell, Fryer & Milstead and R. H. Feuille, all of El Paso, for appellee.
Appellee, Curtis F. Corzelius, and Appellant Ann Yates Oliver were formerly husband and wife. This suit was brought by appellee to specifically enforce an alleged "gentleman's agreement" by Mrs. Oliver, made after her divorce from appellee and while she was a feme sole named Ann Yates Corzelius, by which she agreed to "deed back" to him certain ranch lands and personal property located thereon, situated in three counties of the state of Colorado, such property having been transferred to her by him by deed and bill of sale dated January 5, 1944, the date of the alleged agreement to "deed back". The consideration recited in the deed was the cancellation of certain indebtedness owing by appellee to Mrs. Corzelius, and fifteen thousand dollars cash paid by her to him. The consideration recited in the bill of sale was the cancellation of certain indebtedness owing by him to her. Trial was to a jury. The judgment requires appellant, Mrs. Oliver, to sign, acknowledge and deliver to the Clerk a deed conveying all of the real estate which appellee had conveyed to Mrs. Corzelius and which she had not theretofore sold, and a bill of sale transferring to him all of the personal property located on such lands. These requirements are conditioned on appellee's having theretofore deposited with the Clerk $94,000.00, $90,000.00 of which is the amount which the jury found appellee was required to pay Mrs. Oliver to entitle him to specific performance of the agreement, and $4,000.00 of which appellee stipulated should be added to such amount.
No point is made as to the pleadings and it is unnecessary to summarize them, but we shall occasionally refer to them.
The material portions of the deed and bill of sale and releases constituting a part of each, all signed and acknowledged January 5, 1944, are:
The deed:
"And further in accordance with the foregoing instrument, I hereby release all the real estate described in the deeds of trust mentioned therein from the terms of said deeds of trust and each of them, and do hereby declare all the indebtedness described in said deeds of trust fully satisfied." The bill of sale:
The contract which appellee seeks to specifically enforce is an alleged verbal agreement which the jury found the parties had entered into prior to the delivery of the deed and bill of sale and as part of a consideration for the delivery of said instruments having substantially the terms set forth in the following letter:
"Ann Yates Corzelius
Hotel Paso del Norte
El Paso, Texas
January 5th, 1944
Mrs. Hugo A. Auler
1408 Wathen Avenue
Austin, Texas.
Dear Tince:
I have today closed a deal with Curt on the Colorado property and we have the following gentlemens agreement: That at any time within one year starting January 5th, 1944 to January 5th, 1945 should Curt pay me back all the money I have invested plus operating expenses and other expenses plus six per cent interest I have agreed to deed him the property back.
However should I see fit, within the year, to sell all of the property or even a part of it I also agreed to give him a ten day option to buy.
Please put this away for safe keeping should anything happen to me within this year as it is not for public knowledge and only between Curt and me.
Ann Yates Corzelius."
Appellants present points in effect that the recitals of the consideration contained in the deed and bill of sale are contractual and cannot be varied or contradicted by parol evidence or by showing a collateral or prior oral option contract to reconvey; that the purported option evidenced by the letter is lacking in consideration and is insufficient to constitute a written contract or memorandum thereof within the purview of the Statute of Frauds, and is so vague and uncertain in its terms and lacking in mutuality that specific performance of the alleged option contract to "deed back" should not be granted.
The recitals that the conveyance of the real estate and the sale of personal property are in consideration of the settlement and release of specific claims are contractual. 20 Am.Jur. p. 975; Mann v. Wright, Tex.Civ.App., 269 S.W. 222, Wr. Dis.; Hillman v. Graves, Tex.Civ.App., 134 S.W.2d 436,
Therefore, in the absence of fraud, accident or mistake they can not be varied or contradicted by parol evidence. Harper v. Lott Town & Improvement Co., Tex.Com. App., 228 S.W. 188; Cobb-Holman Lumber Co. v. Liechty, Tex.Com.App., 41 S.W.2d 18; Firestone Tire & Rubber Co. v. Fisk Tire Co., 131 Tex. 158, 113 S.W.2d 175; ...
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Petrohawk Props., L.P. v. Jones, 06–14–00003–CV
...same transaction.’ ” Preston Exploration Co., L.P. v. GSF, L.L.C., 669 F.3d 518, 524 (5th Cir.2012) (quoting Oliver v. Corzelius, 215 S.W.2d 231, 237 (Tex.Civ.App.–El Paso 1948), rev'd on other grounds, 148 Tex. 76, 220 S.W.2d 632 (Tex.1949) ). There are exceptions to the rule that any modi......
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Oliver v. Corzelius
...This court rendered judgment reversing the judgment of the trial court and rendering judgment in favor of appellants. Oliver v. Corzelius, 215 S.W.2d 231. The opinion of this court in this case fully states the nature and character of the case. The Supreme Court granted a writ of error in t......
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Preston Exploration Co. v. GSF, L.L.C.
...of internal evidence of the subject matter and occasion, that is, that they relate to the same transaction.” Oliver v. Corzelius, 215 S.W.2d 231, 237 (Tex.Civ.App.El Paso1948), rev'd on other grounds, 148 Tex. 76, 220 S.W.2d 632 (1949). Here, it is clear that the intention of the parties wa......
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Moore v. Kirgan
...loc.cit. 144(3). There was also cited Lockwood v. Forst, Tex.Civ.App., 285 S.W. 874, which was also an option case. In Oliver v. Corzelius, Tex.Civ.App., 215 S.W.2d 231, the option was contained in a letter reciting that a deal had been closed on certain Colorado property, with the followin......