Reeves v. Bass (39 Tex. 618, 1873)

Ogden, P. J.

Counsel for both appellants and appellee agree that there are but two questions to be decided by this court, in order to settle the whole matter in dispute as presented in this record.

First, was parol testimony admissible to prove that the deed or instrument set out as the foundation of this action, though absolute upon its face, was executed for the purpose of establishing a trust in favor of the grantee % The common law rule that parol cotemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument, is so generally recognized and thoroughly established in this country that we deem it unnecessary to refer intent-ol the parties, and it is not important to establish that intent by proof of facts or surrounding ■circumstances, for it may not unfrequently occur that ¡there are no facts or circumstances which would establish lhat intent. The rule is, that the intent and purpose of the parties must be clearly established in order to authorize a court of equity to interfere to vary or change a written instrument. And, upon reason and authority, it is immaterial whether that intent be established by proof of the conversation of the parties at the time of the execution of the instrument, or proof of facts or circumstances.

We willingly concede the doctrine announced by Sir William Glrant, in Leach v. Leach, 10 Vesey, that the unassisted oath of a single witness to the mere declarations -of the supposed trustee is not sufficient to establish the trust. But in this case there is the proof of the whole contract between all the parties, and the declarations of ¡all, together with proof of the facts and surrounding cir■cumstances connected with the execution and delivery of 'the writing under consideration, and all the facts which ¡subsequently arose, tending to prove the truth of the defense as set up below. Some of these facts were proven, ¡not by one but by several witnesses, and were all before ifche court and j ury.

The facts in regard to the indebtedness of .appellee to his daughter, the pretended consideration for the deed, the facts in regard to the possession and control of the property conveyed after the execution of the'deed, were all before the court. But, above all, the fact that by this- and other instruments executed about the same time appellant conveyed to his daughter and her husband not only his home, but all it contained, and the last visible piece of property he owned, amounting to fifteen thousand dollars in value, and thereby made himself, in his declining years, a houseless, homeless beggar, is a pretty strong circumstance to establish either the truth of the allegations of his answer, or the fact of his insanity or imbecility.

All the facts and surrounding circumstances connected with the execution of the instrument under consideration were before the court and jury, as well as the conversation and agreement of the parties at the time of the execution of the same, and by that court and jury have been determined in favor of the appellee ; and wo are not inclined to disturb that determination, especially in favor of a daughter who is attempting, without any established! consideration for the claim she sets up, to turn her old father out of his home, where he has lived and nursed her from her infancy.

The judgment of the District Court is therefore affirmed.

AFFIRMED'.