| Tex. | Jul 1, 1858
That parol evidence is admissible to show notwithstanding the acknowledgment of the receipt of the purchase money in a deed, that the money was not, in fact, paid, is well settled. (Howard v. Davis, 6 Tex. R 174.) It is clear from the evidence, that no money was paid ; and that the deed was made upon an executory contract on the part of the defendant, to be performed in future ; but which he did not perform. The motive and inducement to the making of the deed therefore failed. There is, moreover, evidence of mental imbecility or weakness, and undue influence. The defendant appears to have assumed a kind of guardianship and control of the plaintiff, on account of his mental incapacity to protect his own interest; and to have taken his land from him, under the pretence of a contract to support, educate and provide for his children, but with the real purpose of preventing him from improvidently disposing of it to some one else. The nature of the contract itself shows the confidence reposed by the plaintiff in the defendant. It must have been very great to have induced the former to commit to the latter the entire control, maintenance and education of his children. It appears to have been misplaced ; for, however the truth may have been in respect to the treatment of the children otherwise, there is no attempt to show that during the five years they were with the defendant they were sent to school but three weeks. There was in this important particular, at least, a wide departure from the duty the defendant had undertaken to perform. Without dwelling to comment upon the evidence, it cannot, we think, be doubted that the combined elements of
The defence mainly relied on was that of limitation. In so far as the action sought a rescisión of the sale, it is not within the Statute, and must be governed by the analogies of the law, which have been applied in like cases. The same time ought in general to be allowed, it would seem, for bringing an action to rescind, as for the specific performance of contracts. (9 Tex. R. 129 ; 18 Id. 113 ; 15 Id. 394.) But the same influence which operated to induce the making of the deed appear to have continued for several years after the making of it. The plaintiff appears to have supposed that he was receiving, and to receive the promised consideration. Until he was undeceived, there can be no presumption of his acquiescence in a known assertion of right adverse to his interest. The plaintiff supposed the defendant was going on to perform his agreement in good faith until he declined the further charge of the children. That was a breach of contract, and the first act of a character to start the running the Statute, under the circumstances of the case. The bar of three years possession under title is relied on. But it does not appear satisfactorily, from the evidence, that three years elapsed from the time of the breach of the contract under which the defendant held possession, before the bringing of this suit. None of the witnesses date the defendant’s going upon the land earlier than in 1845. They say it was in 1845 or 1846 ; (one witness says in 1846 or 1847;) and it is in proof that the children remained with him there about five years. One witness says he moved into the neighborhood in 1849, “ or thereabouts,” and the children were then living with their father. But this is too uncertain to fix that as the period of the breach of contract, when the other evidence in the case conduces to prove that it must have been later, and within less than three years
Judgment affirmed.