Glenn v. Mathews

44 Tex. 400

• Court: Texas Supreme Court
• Decided: July 1, 1876
• Status: Published

Opinion

Moore, Associate Justice.

The record does not disclose nor does the argument of counsel suggest the ground upon which the general exception to the amended answer of the plaintiff in error was sustained, and we are unable to perceive any valid objection to the answer which warrants the judgment. If the matters stated in the answer are true, it certainly needs no argument to show that the contract on which the action is brought was in contravention of public policy and manifestly fraudulent.

While our statutes of limitations are most liberal in their provisions for the protection of occupants against those who assert adverse or conflicting titles, they were not enacted with the view or intention to provide the means by which parties may, with premeditation and design, filch property from those to whom it justly and honestly belongs. And though it may be that, as between the owner and occupant, the latter cannot be deprived of the benefit of the statute by proof that he entered and held the land with such fraudulent intent, when he has held actual, visible, notorious, and adverse possession for sufficient length of time to bar the owner, yet it by no means follows that if the occupant is evicted hy the owner, and the fraudulent intent with which he took possession is defeated, that he can maintain an action against a participant in such illegal and immoral intent and purpose, no matter however great may have been the gain of the one and the loss of the other therefrom. That contracts against public policy or to effect and consummate a fraud are illegal and void, and that courts of justice will neither carry them into effect nor relieve against them when consummated, are principles of law too familiar and well established to need reference to authorities.

If defendant’s intestate paid plaintiff in error the consideration expressed for his participation and assistance in the fraudulent contrivance by which he designed getting into possession of the land described in the deed, under color of title, the failure to consummate the purpose designed affords him no ground of action. Whatever loss he may have incurred by reason of his fraudulent contrivance to pervert and prostitute the law to an immoral purpose, he is justly left to bear it as a penalty for his fraud. Hor need we cito authorities to prove that though the contract is in writing parol evidence is admissible to show its real character, although the written instrument is thereby contradicted.

But even though the facts alleged did not, as they must clearly do, show that the covenant, for the alleged breach of which the suit is brought, was fraudulent and void, still the demurrer should not have been sustained. As a general rule, the damages which the vendee is entitled to recover for a breach of covenant for title is the purchase-money and interest. It is a familiar principle that the recital in the deed of the amount paid by the purchaser is not concluí sive, and that the real consideration may be shown by parol evidence. (Gibson v. Fifer, 21 Tex., 260.) If, therefore, the deed was a mere voluntary conveyance, and defendant’s intestate paid no consideration whatever for it, it cannot be held that he has sustained more than mere nominal damages by the eviction.

The judgment is reversed and the cause remanded..

Reversed and remanded.