Paris Grocer Co. v. Burks

• Decision Date: 27 May 1909
• Citation: 120 S.W. 552
• Parties: PARIS GROCER CO. et al. v. BURKS et al.
• Court: Texas Court of Appeals

Page 552

120 S.W. 552

PARIS GROCER CO. et al. v. BURKS et al.

Court of Civil Appeals of Texas.

May 27, 1909.

Appeal from District Court, Red River County; Ben H. Denton, Judge.

Action by the Paris Grocer Company and others against W. H. Burks and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

See, also, 105 S. W. 174.

The suit is to subject the 18-acre tract of land in controversy to the lien of an attachment against W. H. Burks, which, at the suit of the Paris Grocer Company, was fixed upon it January 20, 1904. Mrs. I. H. Burks was the owner of a 72-acre tract of land which she occupied as a home. For the 18-acre tract in controversy, originally a part of the above-mentioned 72-acre tract, she executed to her son, W. H. Burks, a deed dated May 20, 1902, and duly recorded June 9, 1902. The consideration recited in the deed was $1 and love and affection. W. H. Burks reconveyed this 18-acre tract to his mother by deed dated March 30, 1903, and reciting as its consideration $1 and love and affection. This deed was not recorded at the time of the attachment and until February 3, 1904. It was alleged and proved by Mrs. Burks that at the time of the execution of the deed by her to her son he, as a condition and agreement of the same transaction of conveyance, orally agreed to build a house near her residence and live on the land so conveyed that he might be near by and be company for and protection to her in her old age, she being a widow, and that if he failed to do so, as he did because unable to perform the agreement, he would reconvey it to her. At the time of the reconveyance Burks was insolvent. The case was tried to a jury on special issues, and, upon their finding that the attaching creditor had notice of Mrs. Burks' ownership of the land at the time of the attachment, the court entered judgment in favor of the appellees.

Lennox & Lennox, for appellants. A. L. Beaty, for appellees.

LEVY, J. (after stating the facts as above).

The legal contentions presented in the case are whether the reconveyance from W. H. Burks to his mother was valid as against a creditor who attached with notice of it, and whether the Paris Grocer Company had or was charged with such notice when it attached. To show that the reconveyance was not void under the statutes as against the attachment lien of the creditor, as being a voluntary gift, the appellee Mrs. Burks made proof that her son W. H. Burks in taking the deed of gift from her, and as a part of the transaction, orally agreed that, if he failed to build a house and live on the land near her door so as to be a protection to her in her old age, he would reconvey. Of course, this evidence could not be offered nor used, and it was not in this case, by Mrs. Burks as a parol condition to defeat the deed she made or compel a reconveyance to her. She must stand on the deed as made. But the evidence was admissible, we think, for the purpose for which it was offered and used, to show honesty of purpose and want of fraudulent intent and a moral obligation to return the title of the property that he had agreed not to retain under conditions. The moral obligation which W. H. Burks assumed in taking the deed of gift from his mother, in agreeing as a part of the same transaction that, if he failed to build a house and live on the land so as to be near her in her old age, he would reconvey, was upon a consideration valuable and sufficient to protect such reconveyance, when voluntarily executed, from the attack of creditors on the ground that the...