Reid v. Allen

• Decision Date: 01 January 1857
• Citation: Reid v. Allen, 18 Tex. 241 (Tex. 1857)
• Parties: JACOB B. REID AND ANOTHER v. JAMES W. ALLEN AND OTHERS.
• Court: Texas Supreme Court

18 Tex. 241

JACOB B. REID AND ANOTHER

v.JAMES W. ALLEN AND OTHERS.

Supreme Court of Texas.

1857.

In a suit on a promissory note given for the purchase money of real property of minors, sold by order of the probate court, a plea which set up a verbal agreement, upon valuable consideration enuring to the benefit of the minors, between the guardians and the purchaser, one of the payors in the note, that the payment of the note should not be demanded until one of the minors should marry or arrive at full age, was held to be bad, on the ground that it proposed to vary the written contract by evidence of a verbal understanding between the parties, at the time of making it, different from that which the writing expressed.

See this case for allegations which were held to disclose no want of power in the probate court to order and confirm a sale of real estate belonging to minors, and no ground for rescinding the contract, or resisting the payment of the purchase money.

It is more regular to permit an amended answer to be filed, before sustaining exceptions to it; but where such answer, if admitted, presents no defense, the refusal of the court to permit it to be filed, is an irregularity for which the judgment will not be reversed.

The refusal of the court to give further time to the defendants to amend their answer is not error, for two reasons. In the first place it does not appear that they had any valid defense to plead by way of amendment; and, moreover, the application to delay the trial to give further time for amendment, was addressed to the sound discretion of the court. It is the right of a party to amend his pleadings, subject only to the qualification that the amendment be proper in itself and in time. But it is necessarily subject to this qualification.

Appeal from Victoria. Tried below before the Hon. Fielding Jones.

Suit by James W. Allen and Ann E. Allen, guardians of James G. Robinson, Frances E. Robinson, William H. Robinson and Thomas A. Robinson, minor heirs of William Robinson, deceased, against Jacob B. Reid and Jesse O. Wheeler, on their promissory note for $2,650, dated January 23d, 1854, and payable December 5th, 1855, and to foreclose mortgage on land for which said note was given.

The defendant answered by a general demurrer, general denial, and then, that defendant Reid and the plaintiff Ann, and the minor heirs of William Robinson, being the owner in common of the tract of land in the petition mentioned in the proportion of one-half to said defendant, one-quarter to said Ann, and one-quarter to said minor heirs, the probate court ordered a sale of the interest of said minor heirs; that the interest of the said heirs in the said undivided tract of land could not be sold without great sacrifice, nor could the same be sold, together with the interest of Ann E. Allen, without a great loss both to the heirs and herself. Wherefore it was verbally agreed and stipulated between the said Ann E. Allen, in her own right, and as guardian of said heirs, and the defendant, Jacob B. Reid, that, in consideration that said defendant would agree to sell his interest in the land, in the petition mentioned, upon the terms made by the probate court of Victoria county, for the sale of the land of said heirs, the said Ann E. Allen would sell her share also, and if the said defendant Reid should purchase the said tract of land, and would pay to the said Ann E. Allen her share of the proceeds of said sale and two hundred dollars, the rent of the said Ann E. Allen's share of said land, and secure the purchase money of her wards by a mortgage upon the half of the land so sold, with ten per cent. interest from the day of sale, by giving his note and mortgage, then the said note and mortgage should not be sued on or foreclosed until some of the said wards arrived at majority or were married. This defendant, Reid, avers that he was induced to enter into this agreement for two reasons: 1st. That in case this defendant became the purchaser, the time for the payment of the share of the purchase money due the heirs would be extended for several years after the note became due, and thus he would be enabled to meet the payments without a sacrifice of property; and 2d, That, as the said Ann E. Allen had not sufficiently secured the said heirs in her guardian's bond, the claim of the said heirs would be secured to them beyond a doubt, on their arrival at maturity or marriage. This defendant further avers that, in consequence of said contract and in consideration thereof, relying upon the said promises and stipulations, at the sale of said land, he was induced to purchase the same for $9,800, which was largely, to wit: $1,800 more than he would otherwise have given, that he paid the said Ann E. Allen $1,200, cash in hand, and executed to her his note for $1,450, due one year after date, being the same in plaintiff's petition set forth, which also he paid at maturity for the separate use of the said Ann E. Allen, in person, and not as representative of said minors.

Now this defendant avers that, instead of carrying out the said agreement in good faith, after he has performed his portion of the said contract in accordance therewith, the said plaintiff, Ann E., and her husband, James W. Allen, have fraudulently abandoned the same, and seek to compel this defendant to pay the said sum of two thousand six hundred and fifty dollars, which by agreement was secured by said mortgage, and was not to be paid as aforesaid, until some one of the minors arrived at majority, or married; and that, too, not for the benefit of the heirs of William Robinson, but for the benefit of said plaintiffs, and the great injury of the heirs.

This dëféndant avers that he has, in every particular, carried out the contract on his part in good faith, and further, that the institution of this suit, and the collection of the money, in plaintiff's petition mentioned, is a fraud upon this defendant, and, as he believes, upon the said heirs, and in direct violation of said agreement and contract. Wherefore the defendants pray that the said plaintiffs may be restrained and enjoined from proceeding further in said suit, until some one of said heirs arrives at majority or marries, in accordance with the said contract and for the defendants' costs in this suit.

The plaintiffs filed exceptions to the answer on the ground that it presented no defense, and was not verified by affidavit. These exceptions were sustained, and the plaintiffs had judgment.

There was a bill of exceptions as follows:

Be it remembered that, upon this cause coming on to be heard, plaintiff's exceptions to defendants' plea were sustained by the court, and the defendants' said plea was stricken out, to which ruling defendants' excepted. The defendants then offered to file an...