Turner v. Biscoe, 5940.
| Decision Date | 25 June 1942 |
| Docket Number | No. 5940.,5940. |
| Citation | 164 S.W.2d 70 |
| Parties | TURNER v. BISCOE et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Wood County; Bascom Gist, Judge.
Suit by Sallie Turner against Ogden Porter Biscoe and others to cancel a deed and for other relief. From a judgment denying recovery, plaintiff appeals.
Affirmed.
Jones & Jones, of Mineola, for appellant.
John D. Glass, of Tyler, for appellees
Under a deed dated March 23, 1938, and filed for record June 30, 1938, Sallie Turner, a feme sole, plaintiff below, conveyed the fee simple title to her 1/6 undivided interest in a 116-acre tract near Hawkins, Texas, to Ogden Biscoe, a defendant below, in her own separate estate. Sallie and Ogden are practically in accord that the consideration for this conveyance consisted of the promise on the part of Ogden to take care of and support Sallie during the remainder of Sallie's life. This consideration is so expressed in the deed. It will be assumed, and if necessary, conceded that Sallie in all respects relied upon this promise at the time she executed the deed. Under the terms of the deed the promise of support as therein set out became a covenant. Sisk v. Random, 123 Tex. 326, 70 S.W. 2d 689. No contention is made to the contrary.
In this suit filed October 24, 1940, Sallie pleaded a trespass to try title action, and in another count to set aside and cancel the deed. She alleged that at the time Ogden made above promise, Ogden had no intention to perform such promise, and at the time Ogden made the promise she had the intent then not to perform or to carry out; that Ogden made said promises and used them and each of them merely as false pretense to induce and procure the execution of the deed; that plaintiff relied upon same; and Ogden has failed and refused to care for and support plaintiff. Sallie, in her prayer for relief, asked for cancellation of the deed and for title and possession of the land. Ogden in pleading and evidence joined issue with above-named allegations of fraudulent intent and of failure to support Sallie.
It is apparent from the pleading that plaintiff predicated her right to a cancellation upon the allegations, in substance, that at the time the deed was executed and Ogden made the promise that she would care for and support plaintiff, Ogden then had the intent not to perform such promise.
In response to special issue No. 1, the jury found that since the date of the execution of the deed Ogden had not performed the promise to care for and support Sallie. Special issue No. 2 reads:
To this the jury answered: "She did intend to perform said promise." Under the latter finding in response to the only ultimate issue submitted under the pleadings, the court entered judgment denying plaintiff a recovery.
Upon a hearing of the motion for new trial which among other things set up alleged misconduct of the jury in answering issue No. 2, the court found as a matter of fact that some of the jurors attempted to answer issue No. 1 so that plaintiff would recover the property sued for, and that when the jury answered "She did not perform the promise" some of the jurors believed by reason of such answer Sallie would recover the property sued for, regardless of how the other issues were answered; and that the above answer to issue No. 2 would not have been agreed to by some of the jurors if said jurors had believed that said answer would have precluded plaintiff from recovering. Plaintiff testified that since the deed was executed Ogden had not given her any food, clothes or money, and that she had earned her living by washing,...
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Anderson v. Davidson
...cited and relied upon by appellants to be factually analogous or legally applicable to the case under consideration. Turner v. Biscoe, Tex.Civ.App., 164 S.W.2d 70; Id., 141 Tex. 197, 171 S.W.2d 118, for instance, was a suit brought by the grantor in a deed against the grantee to cancel the ......
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Coleman v. Ammons, 14483
... ... Failure to perform is not evidence of intent. Turner v. Biscoe, 141 Tex. 197, 171 S.W.2d 118, affirming Tex.Civ.App., 164 S.W.2d 70; Warner v. Venture ... ...
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Turner v. Biscoe, 2461-8055.
...a judgment denying recovery, the plaintiff appealed to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 164 S.W.2d 70, affirming the trial court's judgment, the plaintiff brings Judgment of the Court of Civil Appeals affirmed. Jones & Jones, of Mineola, for pl......