
    ODOM v. ODOM.
    (Court of Civil Appeals of Texas. Galveston.
    June 29, 1911.)
    ■1. Deeds (§ 211) — To Wife of Grantor— Feaitd — Evidence.
    In a suit by a husband, after having secured a divorce, from his wife, to set aside a deed to certain land, executed by him to her shortly after the marriage, on the ground of fraud, evidence held insufficient to show that he was induced to execute the deed by fraudulent representations on her part.
    [Ed. Note. — For other cases, see Deeds, Dec. Dig. § 211.]
    2. Deeds (§ 165) — Consideration — Covenants — Failure to Perform.
    Where a deed was absolute on its face, the title would not revert to the grantor on the grantee’s failure to perform the covenants which were the consideration for the conveyance.
    TEd. Note. — For other cases, see Deeds, Cent. Dig. § 521; Dec. Dig. § 165.]
    Error from District Court, Tyler County; W. B. Powell, Judge.
    Action by Pleasant Odom against Ocia Odom to set aside a conveyance of realty for fraud. From a decree for complainant, defendant brings error.
    Reversed and rendered.
    W. P. Nicks and Joe W. Thomas, for plaintiff in error. J. A. Mooney, for defendant in error.
    
      
      For oilier oases see same topic ana section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   McMEANS, J.

Pleasant Odom, defendant in error, brought this suit against his wife, Ocia Odom, plaintiff in error, for the cancellation of a deed executed by him conveying to the said Ocia Odom 50 acres of land situated in Tyler county, two mares, a wag-gon, and certain household and kitchen 'furniture. Subsequently to the institution of the suit, Pleasant Odom was granted a divorce from the said Ocia by the district court of Tyler county, and this suit was tried on an amended petition filed after the divorce was granted.

Plaintiff, after alleging that he on the 21st day of January, 1907, was the owner of the property in controversy, further alleged: “And that defendant, being desirous of obtaining possession of said land and other property above described, fraudulently and wickedly devised a scheme by which she might obtain possession thereof, and acquire title thereto without paying plaintiff the value thereof. Plaintiff further alleges that he is, and was at the date aforesaid, old and partially 'blind, and by reason thereof was incapacitated from properly attending to his business; that defendant, fraudulently taking advantage of his said infirmity and incapacity, did induce plaintiff for the pretended consideration of defendant living with plaintiff as his wife, and taking care of him the rest of his lifetime, to sign a deed conveying said land and above-described property to her; that said defendant made said false and fraudulent representations and promises with the design and for the purpose of cheating and defrauding this plaintiff out of said above-described property, and knew at the time she made said representations and promises that they were false, and that she did not intend to carry out her promises; that plaintiff relied on the said representations and promises made by defendant, believing they were made by her in good faith and with the intention of living up to same; that this plaintiff was deceived by said false fraudulent representations and promises, and thereby induced to execute and deliver said deed to the above-described property; that defendant, making said false and fraudulent representations to plaintiff, as before set out, led plaintiff to believe, and he did believe, that the defendant was making said promises in good faith, and would comply with her agreements, and he relied upon said representations made by defendant, and executed said deed as aforesaid to defendant to said above-described property, believing that she would continue to be his wife and nurse and care for him during the remainder of his life; that, so soon as the said deed was signed, executed, and delivered by plaintiff to defendant, she, defendant, began to try to rid herself of plaintiff, and finally drove him from his home, and failed and refused to comply with her said agreements, which constituted the consideration. Plaintiff further alleges that defendant married this plaintiff with the full intention of defrauding him out of this land and property, and for no other purpose, and, as before alleged, sought to drive plaintiff from his home of many years so soon as she had induced plaintiff by her fraudulent representations and promises above set out to execute and deliver said deed to her. Plaintiff further alleges that in truth and in fact no consideration passed in said deed from defendant to plaintiff, and that said deed is wholly without consideration and void, but defendant intends and threatens to sell said land and property before mentioned, and to use same for ber own use and benefit, or to bold and occupy same, to tbe prejudice of this plaintiff, and to deprive bim of same.” Defendant answered by general demurrer, special exceptions, general denial, and plea of not guilty. Tbe case was tried before a jury, and resulted in a verdict and judgment for plaintiff, from wbicb tbe defendant bas prosecuted this appeal by writ of error.

Tbe only assignment of error wbicb we tbink it is necessary to pass upon is tbe ninth, in wbicb plaintiff in error complains of tbe refusal of tbe court to give ber second special charge, which instructed a verdict in ber favor. In passing upon this assignment we must necessarily review tbe testimony bearing upon tbe issue of fraud of defendant in procuring tbe deed, and, if tbe evidence most favorable to the plaintiff does not justify tbe verdict in bis favor, tbe judgment must be reversed.

Tbe plaintiff testified that be was 88 years of age; that he and defendant were married on Sunday, January 20, 1907, in Hardin county; that they left that day for his borne in Tyler county, stopping at night with a friend, and completing their journey tbe next day. It was on this trip that plaintiff told defendant be intended to give ber the 50 acres of land. He said: “I never thought about conveying to ber tbe property until after we married and started home. She was going on about tbe children (his children by a former marriage) tearing ber up, and I said they would not, and, ‘if you treat me right, every one I have got will treat you right.’ We did not have any such agreement (to convey tbe land) before we were married. That was a matter that occurred to me later. After I married ber, I told ber what I was going to do. I told ber I was going to give ber this property. After we married and started home, I told ber I would give ber tbe property, and she wanted tbe horses. I suggested first that I give ber the land, and she wanted tbe horses also. What made me suggest to give ber tbe land was this: I told ber, if she took care of me, I would give her 50 acres of land, and she would have a home at my death. The horses was a matter of ber suggestion. It was a voluntary statement on my part about giving the tract of land to ber, and that was all there was in tbe voluntary statement. I agreed to give ber 50 acres of land at my death as a home. Tbe horses came up later at ber suggestion. They were not mentioned at first. They bad nothing to do with the land. I told her I would give ber a bill of sale of tbe horses and wagon, and done that after I carried ber home, and she then wanted all tbe chickens and household goods, and I would give ber them, too. That did not take place immediately after we were married. It was two or three days after we were married.” Asked if be and defendant bad any agreement as to the execution of tbe deed, and what was she to do about tbe matter, be replied: “She was to be my wife and take care of me my lifetime for that property, and that is the reason I gave it to ber.” Continuing, he( said: ‘‘She said she would live with me ail of my life. She was to live with me as my wife, and take care of me all my lifetime for tbe property. After I made tbe deed to ber, it was about two months before this difference arose. She wanted me to give her all tbe balance of tbe whole estate, and tbe children wanted some, and I would not do it and there came up a row, and then she did everything in tbe world she could to separate us, and I would not do it, and did not do it until she drove me off. She ordered me out of her bouse and off of ber land, told me to get off of it, and I left because I knew I would get a dose of strychnine if I stayed there that night. I left then, and I stayed left.” He further testified: “At tbe time I made this deed I relied upon tbe representations she made that she would take care of me. I believed what she said about it. I relied upon what she said she would do and made tbe deed to ber. If I bad not believed that she was going to do it, I would not have made tbe deed to her at all. I believed I bad a good woman, and I believed what she said she would do; but she done everything else but what she promised to do. I would not have given ber .the deed if I bad not believed she would do what she said she would do.” Asked what be would have done if she bad complied with her agreement, be replied: “I would have stayed with ber, and taken care of her until this day.”

Dan Jordan, a justice of the peace who wrote tbe deed and took plaintiff’s acknowledgment thereto, testified for plaintiff substantially as follows: “They were married at tbe time tbe deed was made to tbe best of my knowledge. It was my understanding that they bad just married tbe day before the deed was made. I know bow tbe deed came to be made. He came by my bouse, * * * passed by going up to Mr. Odom’s place 1% miles above there, and be told my wife to tell me to go on up there. He left a message for me to go on up there. I went up there. * * * He had me to make tbe deed. I don’t know anything about tbe terms and conditions entered into before marriage. All I know is what be said at tbe time tbe deed was made. * * * I wrote that instrument in accordance with tbe instructions given me by Mr. Pleasant Odom. Tbe instrument speaks tbe agreement between tbe parties. There was some little bitch in it that I did not understand exactly. I started to write it. I tbink this is as near as I can repeat it. He said: ‘I have married me a young wife, and she is a good woman, and I want this property fixed now beyond any doubt that, whenever I die, I don’t want ber bothered in any way. As soon as I die, I want her to have everything I have gotand he walked oft. * * * I took the acknowledgment right there, and he acknowledged it after I had written it. I read it over to him. * * * He did not raise any objection to it whatever.” Witness further said that plaintiff told his wife that he wanted her to go to Woodville the next morning and have the deed recorded. “I don’t want you to he bothered about this thing. I want you to sure have it. You will outlive me, and, when X die, I don’t want you to be bothered over what I have got. I want you to have everything right.”

In this connection the plaintiff testified: “I signed that deed there. I don’t know whether Mr. Jordan read it over to me or not. I suppose he did. There were no objections to it as far as I know at the time of the execution of it. As to whether I delivered the deed to Mrs. Odom, will say I think Mr. Jordan delivered it to her. I think after he wrote it he handed it to her. I will not say for certain. I guess Mr. Jordan handed it to her for me. As to whether it was with my approval will say I don’t deny the truth. As to whether X requested my wife to place it of record the next day, will say I think I said: ‘As long as we are doing nothing, better come here and have it recorded.’ The deed was brought here and recorded. She brought it up here herself. I came with her. I heard what Mr. Jordan said at the time the deed was made about my wanting her to have the property, and I say that I did say X wanted her to have it, but she was to take care of me my lifetime for the property.” He further said this agreement was made after his marriage. “We had no agreement before we married only to marry; that is all the agreement there was.”

Plaintiff’s witness R. H. Brown testified that he had a conversation with defendant some time in the year 1907, in which she said she did not marry Pleasant Odom for love, but for his money and property, and that she would get rid of him in some way, and that she would not live with him and serve him as a wife. Except that it was in 1907, the witness could not be more definite as to the date when this statement was made.

It was shown that at the time of the execution of the deed in question plaintiff owned 150 acres of land, of which the 50 acres in controversy is a part. The deed sought to be canceled is by its terms an absolute, unconditional conveyance of the land, without any reservations whatever, and contains covenants of general warranty. The consideration recited in the deed is “one dollar and other valuable considerations to me paid by Ocia Odom.” The undisputed evidence shows that during the time plaintiff and defendant lived together the defendant denied to plaintiff the rights of a husband, and refused to submit to his embraces.

We have set out above the substance of the testimony offered upon the issue of fraud in procuring the execution of the deed, and we do not think it sufficient to raise the issue. The deed being absolute on its face, the title would not revert to defendant in error upon failure of plaintiff in error to perform the covenants which were the consideration for the conveyance. Elliott v. Elliott, 50 Tex. Civ. App. 272, 109 S. W. 216; Railway v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39; Mayer v. Swift, 73 Tex. 367, 11 S. W. 378; Moore v. Cross, 87 Tex. 561, 29 S. W. 1051; Freeman v. Jones, 43 Tex. Civ. App. 332, 94 S. W. 1072; Selari v. Selari, 124 S. W. 999.

We think under the undisputed evidence in the ease the plaintiff in error was entitled to a verdict, and the court should have so instructed the jury. It follows that the judgment of the court below should be reversed and judgment here rendered for plaintiff in error; and it has been so ordered.

Reversed and rendered.  