Haralson v. Wheeler (70 S.W.2d 748, 1934)

BAUGH, Justice.

The parties will be designated ‘as appellants and appellees. Trial was to the court without a jury. The. case arose as follows: D. I. Haralson and wife, Sarah Haralson, owned and occupied prior to .1917 the 269 acres of land, in Mills county, here in controversy. In 1917 Sarah Haralson died intestate and left surviving her husband and five children, four of whom, or their descendants, are appellants here; Bona Wheeler, née Haralson, appellee herein, being the fifth. At that time they owed community debts, secured by a lien on said lands, of approximately $1,000. Thereafter D. I. Haralson and his married daughter, Bona Wheeler, together with her husband, D. L. Wheeler, continued to occupy said lands, until 1925, when D. I. Haralson died intestate. After the death of Sarah Haralson, D. I. Haralson, joined by Bona and D. L. Wheeler, mortgaged said lands to secure various debts, most of which were primary obligations of D. L. Wheeler, on which D. I. Haralson was surety, aggregating approximately $5,000; but a part of which, the exact amount not being clear, was the separate indebtedness of D. I. Haralson. In 1925, after the death of D. I. Haralson, foreclosure proceedings were threatened against said land on all of said indebtedness. The appellants, all of whom then resided in New Mexico, and at the instance of D. It. and Bona Wheeler, undertook to convey either to E. B. Anderson or to Mrs. Bona Wheeler, as trustee, all of said land to enable Wheeler to refinance 'all of said indebtedness and prevent a foreclosure; but this conveyance was never delivered, or, if so, was lost and never recorded. In 1927, when foreclosure was again threatened, a new deed was executed by appellants, conveying all of their interests in said lands to Mrs. Bona Wheeler for a recited consideration, as follows: “In consideration of the said Mrs. Bona Wheeler, assuming and agreeing to pay all the legal debts owing by the estate of D. I. Haralson and wife, Mrs. Sarah A. Haralson, deceased, secured by a lien on the lands hereinafter described.”

This conveyance was a general warranty deed.

The basis of this suit, and the contention here made, is that there was an oral agreement between the grantors and the grantee that when Wheeler and wife had refinanced said debts and had mortgaged the lands involved as security therefor, they were to re-convey to each of the other children their respective undivided one-fifth interests in said lands, subject to the debts against the entire tract; and were to pay to each of them each year one-fifth of the m„