Ponce v. McWhorter

• Decision Date: 01 January 1879
• Citation: 50 Tex. 562
• Parties: DIMAS R. PONCE v. A. F. MCWHORTER ET AL.
• Court: Texas Supreme Court

50 Tex. 562

DIMAS R. PONCE

v.A. F. MCWHORTER ET AL.

Supreme Court of Texas.

1879.

APPEAL from Madison. Tried below before the Hon. James R. Burnet.

H. H. Boone, for appellant.--Zoraster Robinson was the original grantee of the land, and all parties claim under or through him. The deed from Robinson to Richardson was made on the 17th of October, 1835, duly acknowledged August 8, 1837, filed for record October 16, 1840, and recorded November 22, 1840, in the county of Montgomery, within the boundaries of which the land then was embraced. The defendants claim under junior title from Robinson, made subsequent to the recording of the deed from Robinson to Richardson. But they seek to avoid the deed to Richardson on three grounds. They claim (1) that on the 13th of January, 1841, there was a rescission of the sale made by Robinson to Richardson, and a reconveyance of the land by Richardson to Robinson; (2) that there was a failure of consideration in the original sale from Robinson to Richardson; and (3) that there was fraud in the sale from Robinson to Richardson.

These propositions they seek to establish by the introduction of an instrument purporting to have been executed by Richardson on the 13th of January, 1841, [[[[[which reads as follows: “January 13, 1841.--This day received of Zoraster Robinson $75 in full for money paid by me in 1835 at San Felipe de Austin in clearing out said Robinson's headright league of land, he (said Robinson) having paid the government dues on the same. Signed, DANIEL L. RICHARDSON,”] and by the testimony of Zoraster Robinson himself.

The pleas setting up these defenses were excepted to by plaintiff; his exceptions were overruled and proper bills of exceptions were taken. The introduction of the receipt as evidence and the depositions of Robinson were objected to by plaintiff; his objections overruled and bill of exceptions taken. The same question arose in the charge of the court, and was excepted to, and bills of exception taken. A special charge was asked embodying plaintiff's view of the law on these questions, which was refused, and bill of exceptions taken. The assignment of errors presents all of these rulings of the judge below as errors for which judgment should be reversed.

We respectfully contend, for appellant, that the deed from Robinson to Richardson cannot be avoided on any of the grounds taken by defendants, and that it was the oldest conveyance, was first recorded and conveyed the land, and as there are no questions of prescription involved, the judgment of the court below on the law and facts should have been for plaintiff.

1. There was no rescission of the sale from Robinson to Richardson. The deed from Robinson to Richardson was made in 1835; the date of the pretended rescission is January 13, 1841. The statute of frauds was passed January 18, 1840; took effect March 16, 1840. (Paschal's Dig., p. 409.) It was invoked by proper pleas by plaintiff. The alleged receipt from Richardson to Robinson cannot be construed into a memorandum in writing for the sale of land, (Patton v. Rucker, 29 Tex., 402;Bracken v. Hambrick, 25 Tex., 412;Taylor v. Ashley, 15 Tex., 53,) nor as a rescission of a sale of land, because such a “contract for a rescission of a sale of land” would be as much obnoxious to the provisions of the statute of frauds, and would require the same evidence under the statute to set it up as would be required for the sale of land. (Dial v. Crain, 10 Tex., 444, 454.) A verbal agreement to destroy a deed, or even its destruction, will not reinvest the title. (Van Hook v. Simmons, 25 Tex. Supp., 325.) The receipt in itself being inadmissible as evidence of a sale or a rescission of a sale of land, clearly the testimony of Robinson was inadmissible and insufficient to render it admissible and sufficient; nor was this evidence admissible to show a failure of consideration in the sale from Robinson to Richardson. This sale was witnessed by a deed under seal, properly executed, acknowledged, and delivered. It passed the title to the land and acknowledged the consideration. Robinson and those claiming under or through him were estopped from denying its recitals. (Gould v. West, 32 Tex., 339, 354; 2 Best on Ev., sec. 542, and authorities there cited; 1 Geenl. Ev., secs. 24-26, 211; Crabb's Law of Real Prop., sec. 2432, et seq.; 2 Smith's Lead. Cas., 582, et seq.)

“The true doctrine is stated in Grout v. Townsend: that where a deed acknowledges the receipt of a consideration, the grantor and all claiming under him are estopped from denying one was paid. They may disprove the payment for the purpose of recovering the consideration-money, but they cannot do so for the purpose of destroying the effect and operation of the deed.”“It cannot be contradicted or varied by parol so as in any way to affect the purpose of the deed, that is, its operation as a conveyance.” (3 Wash. on Real Prop., pp. 328, 85, et seq.; Grout v. Townsend, 2 Hill, 554, and 2 Denio, 336; Philbrook v. Delano, 29 Maine, 413; Rockhill v. Spraggs, 9 Ind., 33, and note on p. 34 and the authorities therein cited.)

Nor was it admissible to show fraud, (1) because defendant had not sufficiently alleged fraud in the original transaction, that is, in the sale by Robinson to Richardson; (2) because if fraud in that sale was not properly and sufficiently alleged as existing or having been committed at the time or as part of the original transaction, evidence of any subsequent act of omission or commission on the part of Richardson was not admissible. Giving the fullest weight possible to the testimony, it amounts to this, and nothing more, if it be true: that there was a partial failure of consideration, that Richardson did not pay the government dues. This, if he did not do, he ought to have done; if he failed to do so, it gave Robinson a right of action against Richardson, in which he might have recovered the amount. But can such failure relate back to the original transaction, and render that fraudulent which was otherwise and at the time a good and valid sale? Suppose that Robinson had brought suit against Richardson for the land and for a cancellation of the deed upon the ground of fraud, and his only proof of fraud had been that Richardson had failed to pay this amount of money: could he have recovered? But it is contended that Robinson's testimony shows that the receipt given in 1841 was represented by Richardson and intended by him to be a rescission and reconveyance to Robinson of the land, and that this misrepresentation was a fraud, and relates back to and vitiates the original transaction. This is reasoning in a circle. It was not competent by parol evidence to vary and contradict the plain written language of the receipt. It most certainly was not competent to show that it was intended as a rescission of the original sale and a reconveyance of the land. And how can these misrepresentations, if in truth they were made, be made to relate back to and taint with fraud the original transaction? We submit that this evidence should all have been excluded, but that after being admitted by the court, over the objections of plaintiff, the charge of the court upon the question of fraud was unwarranted, confused, calculated to mislead the jury, and did mislead them.

It is contended, too, that the equities are all in favor of defendants, and therefore they should have recovered. Let us analyze this pretension. Richardson bought on October 17, 1835, when a deed absolute was executed and signed by Robinson in the presence of witnesses and delivered to Richardson. About two years afterwards, in 1837, this deed was acknowledged by Robinson before an officer authorized to take acknowledgments of deeds, as shown by the certificate of the officer, and subsequently placed of record by Richardson in the proper county. Several years after this these defendants purchased the land conveyed in this deed from Robinson. They had constructive notice of the sale by Robinson to Richardson. This was sufficient. But if it were necessary, we think it can be shown from the statement of facts that they had actual notice. With one of them, it seems, Robinson left the pretended receipt from Richardson to Robinson as evidence that the sale from Robinson to Richardson had been rescinded, and to be used in case there should be assertion of title by Richardson or any one claiming under him. This was later, of course, than January 13, 1841, the date of the receipt. These parties knew, or should have known, (because ignorance of law excuses no one,) that the pretended receipt was not such an instrument of writing or memorandum in writing as would divest the title of the land out of Richardson and revest it in Robinson. He who trusts most must lose most. These defendants trusted entirely to Robinson's statements, which were contradicted by the records and by the law. And was Robinson in any better condition before he sold to these defendants than were they after they purchased from him? Could he invoke any equities before the sale to them which they could not invoke after their purchase? Equity follows the law. The laws say there was no rescission of the sale from Robinson to Richardson; that he cannot show want of consideration by parol testimony in order to avoid a deed absolute, under seal, acknowledging a consideration; that though it might be avoided for...