
    Herman VAUGHN v. Elzie Mae CREWS.
    No. 6625.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 1, 1956.
    Rehearing Denied Oct. 29, 1956.
    Snodgrass & Calhoun’/ Amarillo, for appellant.
    „> Adkins, ,,Folley,. McConnell & Hankins, Ajnarjtlp,' for appellee. ,.
   NORTHCUTT, Justice.'

For a statement of the nature of this cáse -and. the disposition made of 'the -case by the trial court, we repeat the- statement as made by the appellant and-which appellee admits is correct: ■ . . - . • :.

“This suit was instituted by "appellant, Herman Vaughn, against the ap-pellee, Elzie Mae Crews,. for the recovery of certain real property because of the fraudulent representations made by appellee to appellant in procuring title to such property. Appellant’s ác.tion was stated in four counts., alleged alternatively; viz. trespass to try title; cancellation and rescission ,of the deed and release because of fraud in the inducement; , a constructive trust;, and because of appellee’s fraud, rescission of the conveyance by failure of appellee to pay the vendor’s lien nóte when due.
“Appelleé’s answer contained various exceptions^ which were' overruled, a plea of not quilty, a general denial, affirmatively -that the " instruments sought to be cancelled were unconditional;'. Article 3995, Subdivisions 3 and 4; and Article 1288 of the Revised Civil Statutes. ; ■ . . '
“Trial was had before a Jury and at .b the close of1 appellant’s . evidence,, .ap? pel.lee’s motion for an instructed verdict was granted by the Court and Judg- . ment thereupon entered that 'plaintiff take npthing. by his suit, from which, appellant has prosecuted this appeal.” '

Appellant and appellee were married' on> or abo.ut' July 15, 1950, and lived together as" man and wife for only about six weeks. They were divorced in January, 1951, ánd appellee married a man by the name of Fenton, a few weeks after she was separated from Mr. Vaughn. Appellee continued to, live with Fenton for some time and was finally divorced from him .on' the- grounds of cruel treatment in March of 1954. 'In the divorce decree from Fenton, appellee was restored to her former name of Elzie Mae Crews.

On October 25/ 1952, the appellant made and executed a warranty deed transferring to ap'pellée the property involved in this suit. The warranty deed was- in the r'egU“ lar form. The consideration .was .$10 paid by Elzie Mae Crews out of her separate property, as follows : $10 cash in hand paid, the receipt of ’ which is hereby acknowledged, and'the execution and delivery "of one vendor’s lien of even date in the principal sum of $7,000 bearing’ interest from date at the rate of seven per cent per annum and the further consideration being the assumption of the balance due on all outstanding indebtedness charged against said property. Appellee executed the $7,000 vendor’s lien note "mentioned in the de.ed, both, the. deed and .the, note were placed in the. hands of an attorney who' was to hold the deed until appellant gave “him • further instructions or called for the dee(L Later appellant secured the deed from the attorney > and, had .the same filed for record on;June.-10, 1953,. and the same was recorded in Volume. 635, at page-13 of, the Deed- Records of .Potter ' County, Texas; thereafter appellant did ftot make any,payments upon the indebtedness that appellee assumed in the deed but appellee made what payments were made. Appellant released the $7,000 vendor’s lien and-'had the same recorded on June 29, ,1954, in Volume 668, page 463, Deed Records, Potter County, Texas.

Appellant testified, when appellee talked to him about - deeding the property to her, that in case he died, he wanted appellee to have the property. It was the contention of appellant that he deeded this property to appellee and also gave the release of the vendor’s lien because appellant had promised to marry him and that he believed her. We think, from.this record,,appellant surely must .have, been .enraptured by the cunning: wiles of. appellee; but there is nothing- in this, record to indicate that appellant was not a man of common ability and knowledge or should have known that he had no right to secretly collaborate with the appellee seeking to secure the wife of another man.

The trial court instructed the jury to return a verdict in behálf of the defendant and further that appellant and appellee were equally guilty of wrongdoing and should'be left as they were found. We believe the court made the right disposition of this case and that the case should be affirmed. j

It should be noted that appellant knew at all times -up to the date of the divorce in March 1954, that .appellee was married and could not marry him, and that any .contract he. would make for her to marry him -would be void and against publk policy. He cannot plead ignorance, of the law as to her , status at all times pertinent to their transactions in this m- Ah of their acts in reference to getting married were such that they cannot be approved, and they both were guilty of wrongdoing. We think any promise made by appellee as •pleaded by. appellant was ‘ invalid, against public policy, and unenforceable. Nicholas v. Holder, Tex.Civ.App., 244 S.W.2d 313, writ refused, N.R.E.

Of course, appellant contended .he did what he did because appellee promised to marry him; but we might' also show the statement made by appellant as to what caused him to record the deed transferring' the property to appellee where he- stated:

’ "Q. About how long were those instruments in the attorney’s office ? A. Well, they were there from the time they were drawn until — well, I don’t know — whenever they were recorded.
“Q. Let us take this deed for example: this deed shows it was recorded on June 10, 1953. Á.' Well,'they'was in the attorney’s office-from the time it was drawed until it was recorded.
“Q. How was that instrument recorded? A.. I beg your pardon?
“Q. Who got the instrument- and who did the' recording' of the instrument? A. I got the instrument and had it recorded for h.er. . ,-
“Q.- At-whose request did you fe-cord it? A. The defendant’s.- ■
“Q. Tell the jury, now, just what transpired that caused you to go up to the attorney’s office? Á. Well, she ' come in and told me, says T would like to have á' deed to’ that so I Would’ be safe on it if anything, happens.’
“And then, of course; there Was pay-' ments to. make on the place and everything.' ’'
“And I sáid, ‘As long as we- aré .going to go ahead and get married, I will go and get it for you.’ ■ ’
“And- I went-.and got it and had.it recorded for her.”
As to the release of the vendors lien he stated:
“Now, if-you will, please explain to;-¡ the jury how this -release happened to be recorded or taken from. the, attpr- • ney’s office.-. A. 'Well, I-kept.trying, to .. get her to let .me .have a little money-along. I was as broke as could be.
.-“And she says,■ ‘I ain’t making any- . money. I am broke, too.? And she - says, T have got to get a loan on that thing or I am going to lose -the -whole • works.’
“So I released that so she could get • the loan raised on-it. So that is how come-that to-be done.”

; Nothing was promised here by the ap-pellee in, the way of marriage for the delivery of the instruments. Judgment-of the trial- court is affirmed.  