Opinion
No. 6918.
June 22, 1967.
Appeal from the District Court of Harris County, Bert H. Tunks, J.
C. C. Divine, Houston, for appellants.
E. Leon Phillips, Pasadena, for appellee.
This is an action in trespass to try title. Trial was before the court and judgment was rendered for defendant and that plaintiffs' take nothing. No findings of fact nor conclusions of law were requested or filed. The parties will be referred to here as they were in the trial court.
Plaintiffs alleged: That the property involved in this suit had been the homestead of their father and mother. That their mother died and their father, desiring to protect the homestead rights for the unmarried children, induced plaintiffs to convey their interest to him. That the father then conveyed the title to this property to the two unmarried children, Juan Velasquez, Jr., and defendant, Senaida Velasquez. That when Juan Velasquez, Jr. married, the father induced him to convey his interest to the defendant. That such deeds were executed by plaintiffs upon representation to them that this was the only way the unmarried children could maintain the homestead of their father and mother, and that upon the marriage of these two children, the title to the property would be reconveyed to them. That when defendant married she refused to reconvey such interest to plaintiffs.
Plaintiffs' six points of error are: In ruling that plaintiffs failed to establish a common source of title; in ruling that plaintiffs failed to show an interest in the title to such property; in ruling that plaintiffs' pleading and proof failed to impress a trust upon the title to said property; in ruling that defendant's conduct was not fraud; in ruling that plaintiffs' cause of action was not established by the evidence; in refusing to apply the principles of equity and impose a trust to reconvey upon defendant and in granting a take nothing judgment against plaintiffs.
The statement of facts shows that the trial court admitted in evidence a deed from Juan Velasquez, Sr. to Juan Velasquez, Jr. and the defendant, Senida Velasquez and also a deed from Juan Velasquez, Jr. and wife to the defendant conveying the property in question. There is also an admission by defendant that her only claim to title is under these two deeds. All of the testimony as to the representations alleged by plaintiffs in their petition was excluded by the court, and was included in this record only as a bill of exception. There is no point of error complaining of the action of the trial court in excluding such testimony.
The evidence offered in the bill of exception would have the effect of showing that the grantors in the deeds were conveying to the defendant the title to the property only so long as she remained single. The deeds under which defendant claims convey a fee simple title without reservation. The trial court properly excluded any parol evidence which would tend to vary the terms of such conveyances so as to show a different estate had been conveyed. The rule that permits parol proof to explain the true consideration for a conveyance in certain instances, has no application to the factual situation in this case. Such rule cannot have application when the parol proof has the effect of limiting, qualifying, or imposing a condition upon the estate conveyed; and especially if the attempt is to show a reservation of an interest in contradiction of the clear import of the conveyance. Russell v. Russell (Tex.Com.App.), 120 S.W.2d 793.
The parol evidence rule as commonly expressed is to the effect that in the absence of fraud, accident or mistake, parol or extrinsic evidence is not admissible to contradict or vary the terms of a written instrument. The general allegations contained in plaintiffs' petition could be construed as alleging fraud, inasmuch as it is stated that false representations were made both as to the homestead law and the fact that the property would be reconveyed. But, there is nothing in the evidence, either admitted or in the bill of exception, showing the defendant made such representations or was connected with them. No actionable fraud on the part of defendant was proved. All of plaintiffs' points of error are overruled.
Affirmed.