J. A. Reeves and Wife v. Archibald Bass, 39 Tex. 618

Ogden, P. J. Counsel for both appellants and appellee agree that there are but two questions to be decided by this court, in order to settle the whole matter in dispute as presented in this record.

First, was parol testimony admissible to prove that the deed or instrument set out as the foundation of this action, though absolute upon its face, was executed for the purpose of establishing a trust in favor of the grantee % The common law rule that parol cotemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument, is so generally recognized and thoroughly established in this country that we deem it unnecessary to refer <t o authorities in its support.

When the language is clear and unambiguous, that instrument must be its own interpreter, and must be regarded as containing the most definite, settled and final intent of the parties thereto, which may not be varied by testimony of a less degree of credulity. But courts of equity have enlarged this rule of the common law, in particular instances, under the general rule that courts of equity are clothed with a corrective and remedial power in all cases of accident, mistake or fraud. And this rule, says Justice Story, stands independent of and not controlled by the statute of frauds. (1 Story’s Eq.

Jur., 155.) It is said by the same learned author, that “It is difficult to reconcile this doctrine with the rule of evidence of the common law, which studiously excludes the admission of parol evidence to vary or control written contracts” (Eq. Jur., p. 154); but he says that this rule of equity is as firmly established as the common law rule, and that where they conflict equity must prevail. This rule has often been recognized and repeated as an established rule of the law of this State. In Mead v.

Randolph, 8 Texas, 196, it is said: “It seems, then, now to be beyond question, that parol evidence is admissible to prove that a deed or instrument, absolute upon its face, was executed and delivered upon certain trusts not reduced to writing, and which the grantee promised to perform.” The same rule was held as settled in 3 Texas, 1; 5 Texas, 93; 21 Texas, 245; 25 Texas, 403; and in many other cases decided by this court.

This equitable rule has been recognized by this court in cases of accident, mistake or fraud, and where great injustice might arise, without this power in the courts to inquire into by parol and enforce the original intent of the parties. In Mead v.

Randolph, the doctrine announced by the Supreme Court of Alabama, that “ though there be no fraud in the execution of the deed, yet if it be after-wards converted to a fraudulent purpose, or the one wholly different from that intended by the parties at the time of its execution, equity ought to interpose and prevent such an improper use, and establish the trust for which the deed was executed,” was clearly approved and adopted by this court, and we think this a reiteration of a well defined and clearly established rule of equity, which we are not at liberty to disregard.

We are clearly of the opinion that the rules referred to, as established by former decisions of this court, must decide the first question presented adversely to the appellants.

The appellee clearly sets up the fact, that though the deed in controversy is absolute upon its face, yet at the time of the execution of the same it was the intent and purpose of all the parties thereto that it should operate a conveyance in trust for the exclusive benefit of the grantor during his life, and at his death the same should operate as a testamentary devise to his daughter; that, in fact, no consideration passed between the parties, and none existed excepting the love and affection he bore for his daughter, and the wish to place his property beyond the reach of a certain party whom he feared might institute proceedings against him.

The intent of the parties at the execution of the instrument is clearly set out in the answer, as well as the charge that the plaintiff, in disregard and violation of that intent, had fraudulently set up the claim that the instrument was intended as an absolute present deed, to take effect from the date of its execution.

We think the answer sets up a sufficient equity as against the plaintiffs to entitle the defendant to be heard by his evidence, and that therefore the answer was not obnoxious to the exceptions, on the ground stated; and for the same reasons, the objection raised to the introduction of the evidence on that ground was not well taken.

Having decided that the defendant’s pleadings were sufficient to warrant the judgment of the lower court, the only remaining question contended for by the appellants which we deem necessary to notice in this opinion is in regard to the sufficiency of the evidence to sustain the judgment.

And here it may be proper to remark, that in all cases where parol evidence is admissible to vary a written instrument, that evidence is permitted in order to establish Vs\e> intent-ol the parties, and it is not important to establish that intent by proof of facts or surrounding ■circumstances, for it may not unfrequently occur that ¡there are no facts or circumstances which would establish lhat intent. The rule is, that the intent and purpose of the parties must be clearly established in order to authorize a court of equity to interfere to vary or change a written instrument.

And, upon reason and authority, it is immaterial whether that intent be established by proof of the conversation of the parties at the time of the execution of the instrument, or proof of facts or circumstances. We willingly concede the doctrine announced by Sir William Glrant, in Leach v. Leach, 10 Vesey, that the unassisted oath of a single witness to the mere declarations -of the supposed trustee is not sufficient to establish the trust.

But in this case there is the proof of the whole contract between all the parties, and the declarations of ¡all, together with proof of the facts and surrounding cir■cumstances connected with the execution and delivery of 'the writing under consideration, and all the facts which ¡subsequently arose, tending to prove the truth of the defense as set up below. Some of these facts were proven, ¡not by one but by several witnesses, and were all before ifche court and j ury.

The facts in regard to the indebtedness of .appellee to his daughter, the pretended consideration for the deed, the facts in regard to the possession and control of the property conveyed after the execution of the'deed, were all before the court.

But, above all, the fact that by this- and other instruments executed about the same time appellant conveyed to his daughter and her husband not only his home, but all it contained, and the last visible piece of property he owned, amounting to fifteen thousand dollars in value, and thereby made himself, in his declining years, a houseless, homeless beggar, is a pretty strong circumstance to establish either the truth of the allegations of his answer, or the fact of his insanity or imbecility.

All the facts and surrounding circumstances connected with the execution of the instrument under consideration were before the court and jury, as well as the conversation and agreement of the parties at the time of the execution of the same, and by that court and jury have been determined in favor of the appellee ; and wo are not inclined to disturb that determination, especially in favor of a daughter who is attempting, without any established! consideration for the claim she sets up, to turn her old father out of his home, where he has lived and nursed her from her infancy.

The judgment of the District Court is therefore affirmed. AFFIRMED'.