Wright v. Hays

Ogden, J. The pleadings in tins cause are too numerous to .admit a specific notice of -each, or of the several causes of action ¡or defense attempted to be set up by the plaintiff and defendant in the court below. We will therefore -only notice such of the assignments of -errors, and the-questions therein raised, as may be deemed necessary for a correct -determination of this cause; and, in doing so, we discover no sufficient error to authorize a reversal of the judgment unless it be contained in the sixth assignment. It is believed that the plaintiff’s petition showed upon its face a sufficient -cause of action, and therefore was not demurrable. We also think that the court did not err in sustaining plaintiff’s exceptions to -defendant’s amended petition, which set up a • contemporaneous parol contract .that would materially change or wholly defeat the written contract sued on. There is, perhaps, no general rule of law better settled than that which forbids the introduction of parol -evidence to vary or contradict the terms of a written instrument. (Greenl. Ev., §§ 275, 276 ; Trammel v. Pilgrim, 20 Texas, 160.) This pretended contract, or, as it is claimed to be, a part of the contract sued on, would, if admitted to be a part, or if admitted .as an independent contract of itself, have wholly defeated the written contract, and would, therefore, have been in direct violation ¡of the principle of law referred to. We are also of the opinion that the pleadings and evidence ¡authorized the judgment of the court in setting out the land by metes and hounds. The petition, contract and patent, together [260] with the paral evidence, sufficiently describes/the land, to warrant the judgment rendered. The. sixth assignment of error reads as follows: The court erred in overruling the. defendant’s motion for a new. trial.” The above is a very common assignment of error, and yet it does not specifically point out any error, excepting upon the hypothesis that it was- error to overrule a motion for a new- trial under any circumstances. It is, however, presumed that the counsel filing the assignment intended to refer to some error of' the court on the trial', and specifically pointed out in the- motion for a new trial; and, by reference to the motion for a new trial, we discover no error, unless it be contained in the last clause of the motion, that the verdict of the jury is contrary to the law and the evidence. Certainly this is not distinctly pointing out the error» as required by article 1591, Paschal’s Digest. But, upon an examination of the whole record, we find that the evidence establishes the- facts that, in 1857, appellant and appellee’s assignor entered into a contract in writing, by which appellant bound himself on, the- payment, as purchase money, of fifty cents per acre, to convey forty acres of a certain tract of land so soon as he obtained a patent for the same; that in 1859 a patent was issued to appellant for 16.fi acres of land, including the land described in appellee’s: petition, in the court below; that appellee-, as the- assignee of said- contract, presented to appellant the contract for the forty acres of land, and demanded the conveyance- according to the terms thereof; and that, on a refusal by the appellant to make the conveyance, appellee brought this suit to compel a specific performance of the contract ; that the defendant in the court below, after his exceptions to plaintiff’s petition were overruled, filed a general denial, and afterwards amended by setting up a contemporaneous verbal contract, which naturally changed the written contract, and on motion of' plaintiff that amended answer was properly stricken out. Subsequently, defendant filed a second amended answer, setting [261] up the fact that the land which he had contracted to convey was, at the time of making the contract and at the filing of the amended answer, a part of his homestead, and that he had no power or authority to convey the same. This defense, so far as a specific performance was prayed for, might have been good at the time of executing the contract, as defendant was then a married man living on a portion of the 160 acre tract. But at the trial of the cause, this defense had failed him, as his wife had died and left him a single man. And notwithstanding that, at the time of executing the contract, he possibly could not have been compelled to execute a conveyance, and particularly if the land in controversy formed a part of the homestead, which is not satisfactorily proven in this case, without the consent of his wife; yet the contract as to him was not unlawful, but good and valid, and he might have been sued for damages during the life of his wife, and at her death he may be compelled to execute the deed, in compliance with his previous contract (Primm v. Barton, 18 Texas, 206; Brewer v. Wall, 23 Texas, 587; and Allison v. Shilling, 27 Texas, 450); and more especially as he sets up a claim to the homestead for himself alone. But the question of homestead was properly presented to the court and jury, under the pleadings and evidence, the plaintiff claiming that the particular tract of land now in controversy was never a part of the homestead of defendant, and there was evidence that such might have been the fact. The charge of the court presented to the jury the law in regard to the homestead rights, as favorably for the defendant as the facts proven would warrant, or as he had a right to ask or expect, and yet the jury found adversely to the homestead rights, and we are not inclined to question the legality or justness of their finding. There is, however, a peculiar equity in this cause, as the appellant does not claim the homestead rights, fur the benefit of a helpless family or children, but for himself alone, because he alleges that he is the head of a family and claims the protection of the law for himself, [262] against his own voluntary and solemn obligation, because of his allegation, imperfectly supported by proof, that he is the head of a family. We are unable to discover any sufficient error in the judgment of the district court to authorize a reversal. The judgment is therefore affirmed. Affirmed.