Wallace v. Lewis

60 Tex. 247 | Tex. | 1883

Watts, J. Com. App.

Appellant claims that the court erred in refusing to strike out the amended petition, as it did not point out the pleading with its date sought to be amended, and that it was not properly indorsed and numbered. The first ground is not supported by the record, for it is stated in the amended petition that by leave of the court he amends his original petition, filed on the 9th day of February, 1880. Except in the margin of the transcript, there is no indorsement of this pleading shown by the record, and it is there named by the clerk “ amended petition.” If the pleading was not indorsed upon the back, as required by the rules, that fact should have been made to appear from the record.

But admitting that the court erred in overruling the motion on that ground, still no injury is shoxvn to have resulted to the appellant from that source, and consequently it must be considered and treated as an immaterial error.

All the other assignments of error may be considered under one proposition. And that is, could the appellee allege and establish that the deed from him to appellant, though absolute upon its face, xvas in fact made to enable the appellant to go upon his bond as security, and to secure him against any loss that might be incurred on account of the bond?

The general rule is elementary that parol' evidence is not admissible to change or alter a xvritten instrument. But it is also well established that parol evidence is admissible to shoxv that a deed,, though absolute on its face, is in fact a security for a debt, and is, therefore, a mortgage; or that such a deed was executed and delixmred on certain trusts not reduced to writing, and which the grantee promised to perform; also, that such evidence is admissible to establish a resulting trust. The authorities are cited by Judge Hobby in his work on Texas Land Law, §§ 1661-1663, sustaining the doctrine asserted. •

It is claimed, however, by appellant that the facts alleged and established by the evidence taint the transaction xvith fraud, and that the appellee cannot be relieved as against Ms own fraud.

We do not concur in that view of the case. It does not appear that the appellee intended to defraud any one by making the deed to the appellant. Certainly he could not have intended to defraud the state, for whether the land remained his or vested in appellant, it was equally liable for any judgment that might be rendered on the bond. Could it be considered a fraud upon the officer who took the bond? It would seem not. That officer did not accept the bond upon the faith of this or any other property, but upon the affidavit of appellant, made in accordance with the statute.

As between the parties, the real transaction was this: appellant conveyed to appellee the land for the particular and special purpose of enabling him to qualify as a surety on the bond, and to hold the same in trust to protect himself against any loss that might accrue in the event the appellee should forfeit the bond. To the extent of these particular objects or trusts the title vested in appellee; but when the particular objects sought to be accomplished by this trust relation had been subserved that relation ceased, and appellant no longer had any right to the land.

hfor is the transaction illegal as tending to subornation of perjury. For the purposes of that bond the property was, as intended by the parties, the property of the appellee.

For a case similar in some of its features to the one under consideration see Frazer v. Thatcher, 49 Tex., 30.

There is no such error apparent of record as ought to reverse the judgment; and we report that it ought to be affirmed.

Affirmed.

[Opinion adopted October 30, 1883.]