Walker v. Renfro

• Decision Date: 01 January 1861
• Citation: 26 Tex. 142
• Parties: SARAH A. WALKER v. LUCY RENFRO.
• Court: Texas Supreme Court

26 Tex. 142

SARAH A. WALKER

v.LUCY RENFRO.

Supreme Court of Texas.

1861.

Deeds reciprocally executed and delivered by parties for the conveyance of land by each to the other vest the titles in accordance with their terms, notwithstanding a contemporaneous parol agreement between the parties that the deeds shall not be probated for registry until one of the parties shall perfect the title to the land conveyed by him; and it is immaterial whether the parties did or did not understand this to be the legal effect of their acts.

Quære: Whether, in the absence of fraud, parol evidence is admissible to prove that a deed delivered to the grantee himself was not intended to take effect according to its import?

But if such evidence is admissible, it must be express to the point, and not merely inferential.

Although reciprocal conveyances expressing money considerations and containing general warranties of title may be in effect, an exchange of lands between the parties, yet such a transaction is not a technical exchange; and consequently if one of the parties be evicted from the land conveyed to him, he cannot re-enter upon the land he had given in exchange, as he might do if the transaction was a technical exchange.

In such a case, the remedy of the party evicted is upon the covenant of warranty in his deed.

As to what would be the rights of the party evicted, if his deed contained no warranty, the court expresses no opinion.

ERROR from McLennan. Tried below before the Hon. R. E. B. Baylor.

This suit was brought by Lucy Renfro against Sarah A. Walker and others, for the partition of a league and labor of land in McLennan county, in which tract the plaintiff claimed an undivided interest of four hundred acres.

The plaintiff derived her title by purchase from Isaac Renfro, to whom the defendant, Sarah A. Walker, had conveyed the interest in question on the 6th day of January, 1853. At the same time that Sarah A. Walker made this conveyance to Isaac Renfro, the latter by deed conveyed to her a tract of land in San Augustine county, known as the Sigler labor. The transaction was in reality an exchange of lands; but both deeds expressed money considerations and contained general warranties of title. At the time of the mutual execution and delivery of these deeds, it was expressly agreed between the parties that neither deed should be proved for registry until Isaac Renfro should perfect the title to the Sigler labor. The defect in that title consisted in the conflict of the Sigler labor, to the extent of about one-fourth of its area, including the building improvements, with an older patent belonging to B. J. Thompson. It was also in evidence that Sarah A. Walker occupied the Sigler labor and made one or two crops on it after the exchange; that she had repeatedly demanded of Isaac Renfro that he would perfect the title, and had eventually abandoned the land and tendered him back his deed in consequence of his failure to perfect the title; that when the plaintiff, Lucy Renfro, was about to purchase from Isaac Renfro the undivided interest in controversy, Sarah A. Walker fully informed her of Isaac Renfro's engagement to perfect the title to the Sigler labor, and of his failure to do so, in consequence of which, as she, Sarah A. Walker, claimed, the land in controversy was her property and not that of Isaac Renfro.

These matters of defense were set up in the answers simply in the shape of a ““failure of the consideration” of the deed from Sarah A. Walker to Isaac Renfro, and not by way of cross action upon the covenant of warranty in the deed from him to her.

Nowlin and Herring, for plaintiff in error, cited 12 Tex. 413;18 Id. 713;19 Id. 312;17 Id. 661;13 Id. 31; 11 Vernon, 621; 23 Wend. 43;11 Humph. 50; 2 Kent Com. 496, et seq.; 2 Yerg. 215;3 Id. 178.

WHEELER, C. J.

The deeds of the 6th of January, 1853, were executed and delivered...