Newcom v. Ford

222 S.W. 591, 1920 Tex. App. LEXIS 636

Opinion

WILLSON, O. J.

(after stating the facts as above). As we view the record, the judgment is not erroneous unless it is true, as appellant insists it is, that the provision in the deed to appellee set out in the statement above in its legal effect was a mere promise of J. E. Ford if he died before the note matured to give it to appellee. Of course, if that was the effect of the provision, the judgment is wrong, for a conditional promise to give a thing or “forgive” a debt is not enforceable. 12 R. C. L. 882, 944, 950. But we do not agree that was the effect of the provision. The nature of the transaction should be determined with reference to the intention of the parties, and in determining that the deed and note should be construed as if they were parts of one and the same instrument. Dunlap’s Adm’r v. Wright, 11 Tex. 598, 62 Am. Dec. 506. So construing them it is reasonably plain, we think, that the transaction was a sale of the land by J. E. Ford and not a gift thereof or of the note to appellee. What J. B. Ford agreed to do was to convey the. land to appellee; and what appellee agreed to do was not unconditionally to pay said Ford any sum of money for the land, but to pay him $525 therefor if said Ford was alive three years from the date of the deed. It is clear, we think, that said Ford did not expect appellee to pay, and that ap-pellee did not expect to pay anything for the land if said Eord should not live as long as three years. Eor aught the record shows to the contrary, appellee may not have been willing to bind himself unconditionally to give as much as $525 for the land, and may have been induced solely by the agreement that he need not pay anything for it if J. E. Ford died within three years to bind himself to pay said sum for it if said Ford lived that long.

The judgment will be affirmed.