Byars v. Byars (11 Tex. Civ. App. 565, 1895)

FISHER, Chief Justice.

Statement of Case. — Appellants, plaintiffs below, sued appellee in trespass to try title for one hundred acres of land situated in Brown County, and also for cancellation of a certain deed executed by appellants to their son, M. J. Byars, deceased, the husband of appellee, conveying to him the land in controversy May 12, 1890. The deed recites a cash consideration of $1250, paid by M. J. Byars to his grantors. Appellants, as grounds for relief, aver that the consideration stated in the deed was not in fact paid, and is not the true consideration for the execution and delivery thereof, but it was executed and delivered in consideration and upon the condition that their son, M. J. Byars, should care for and administer to the wants of appellants in their old age as their conditions and necessities might require, and that M. J. Byars died on July 21, 1893, and up to the time of his death, and after, he nor any one for him, has ever contrihuted towards the support of appellants, or administered to their several wants, but, upon the contrary, the appellants, before his death and since, are not aged or decrepit, and were not in need of the services and aid of the said M. J. Byars, and the circumstances have not arisen that called for the execution of the consideration upon the part of said M. J. Byars, and that by reason of his death it has become impossible for him to comply with the conditions upon which the deed was executed, and therefore the consideration thereof has wholly failed, that his estate is insolvent, and there is no a