216 S.W. 272 | Tex. App. | 1919
Appellee sued appellant in statutory trespass to try title to recover 50 acres of land in Kaufman county, alleging in addition to the statutory requirements that while she was a married woman her husband refused to join in the suit, and that the land sued for was her separate property. Appellant answered by plea of not guilty, and, among other matters, that the deed was void because against public policy, in that the consideration for the deed was the agreement of appellees to supress the prosecution of appellant's son, Bryan Hanes, for seducing appellee, Mabel Smith. There was trial by jury, to whom the issues of fact were referred for special verdict in form of the usual interrogatories, upon the answers to which judgment was entered for appellee. From that judgment this appeal is taken.
The facts necessary to be stated are these: Bryan Hanes, son of C. W. Hanes and M. P. Hanes, had been tried and convicted in Dallas county on a charge of seducing Mabel Smith. Pending appeal, the appellant, C. W. Hanes, and his wife M. P. Hanes, conveyed to Mabel Smith 50 acres of land of a 600-acre tract in Kaufman county, reciting the consideration to be "one dollar and other valuable consideration," but did not place her in possession thereof. On the day the deed was executed, Mabel Smith and Bryan Hanes were married; the judge of the court where he had been tried and convicted performing the ceremony, and the county attorney who prosecuted him being present. After the marriage, a new trial was granted, and the conviction was set aside, and Bryan Hanes ultimately released, though what was done with the charge does not appear. Thereafter C. W. Hanes, appellant, and his wife, accompanied by their son, Bryan Hanes, and his wife, went to the home of the former in Kaufman county. Three calendar months after the marriage, Mabel Hanes returned to her parents.
The facts preceding and inducing the execution and delivery of the deed, as related by J. B. Smith, father of Mabel Hanes, who was acting for her in that respect, is disclosed by the excerpts immediately quoted from his testimony:
"As to how the deed came to be made, will say that the boy, Bryan, was in prison, and Mr. Hanes wanted him out, and that was the only way to get him out was by signing this deed. This deed was made to get Bryan out of prison — for my daughter to marry him to get him out of prison. * * * Yes, the consideration of the deed was that the case was to be dismissed and Bryan was to be turned out of jail after he married Mabel. We were willing to drop the court proceedings against Bryan so long as he acted a gentleman and treated my daughter right. He had a sentence of five years and was talking about appealing the case. * * * I exacted of Mr. Hanes a conveyance to my child of 50 acres of land, and, when he executed the deed, I was willing for my daughter to marry his son; otherwise Bryan Hanes would have gone to the penitentiary. The land was for the support of her and her child. I didn't give my daughter for the deed."
Upon conclusion of the evidence, appellant requested the court, in effect, to peremptorily direct verdict in his favor on the ground that the deed was void and unenforceable because the consideration therefor was illegal. The request was refused, and the court's action in that respect is assigned as error. It is quite clear, we believe, that the consideration moving from appellee to appellant was the promise of appellee's father to suppress or co-operate in the suppression of the criminal charges then pending against Bryan Hanes. Appellee's father, as we have shown, testified that the consideration for the conveyance was that the criminal proceedings were to be dismissed after Bryan Hanes married appellee. It is said that a contract of such character exists where the parties agree expressly or impliedly upon the suppression or abandonment of the prosecution of the criminal charges. Cohen v. Grimes,
It is argued, however, that part of the consideration of the conveyance moving to appellant was the agreement of appellee to marry his son, which is a legal consideration and may therefore form the basis of a suit of trespass to try title. While it is our deduction from the evidence that the consideration which actually induced the conveyance was the promise to suppress the criminal prosecution pending against appellant's son, and that the marriage was but a part of the plan to accomplish that purpose, it may be conceded that the marriage was part of the consideration and that such marriage is sufficient to support a conveyance of lands from a third party, as it is (1 Elliott Contracts, § 241), yet *274
that fact will not, in our opinion, lend validity to the deed. It "is well settled upon principle and authority that a promise made upon several considerations, one of which is unlawful, no matter whether the illegality be at common law or by statute, is void." Edwards County v. Jennings,
There is also another well-established rule of law that renders the conveyance unenforceable. As we have noted in our statement of the facts, appellant did not, when the deed was executed and delivered, place appellee in possession of the land, and the contract as a consequence was executory. In such cases when the contract is illegal courts will not decree specific performance. Similarly in cases where possession is delivered courts will not aid the grantor in recovering possession. Medearis v. Granberry,
There are a number of other assignments of error, all of which have been carefully examined, none of which, in our opinion, present reversible error, but which we have not discussed in view of the conclusions we have reached concerning the consideration of the deed.
The judgment of the honorable trial court is reversed, and judgment here rendered for appellant.
Reversed and rendered.