On motion For Rehearing In their motion for rehearing the appellees contend with much earnestness that we erred in reversing and rendering the case because, first, in each of the deeds executed by Pat and Don Webb conveying the land to their mother, the appellant, a portion of the consideration recited was that appellant would assume outstanding indebtedness; that it was contractual in its nature and the purport and effect of the deeds were, *Page 881 therefore, not subject to change by extrinsic or parol evidence without alleging fraud, accident or mistake. Secondly, they contend that Pat and Don Webb, being sons of the appellant, had expectancies in her estate. They were, therefore, interested witnesses, and the appellant being likewise an interested witness, the trial court had the right to disregard or reject their testimony.
The general rule invoked by appellees' first contention is well established by the courts of this State as well as of other jurisdictions. It has many times been held that, when the consideration expressed in a deed or other contract is contractual in its nature, parol evidence is not admissible to vary its terms. It is equally well settled however that the rule of exclusion does not include nor bind persons who are not parties to the deed or other written instrument involved. The reason for the exception is that a stranger to the instrument, not having assented to it, is not bound by it, but is at liberty to show that it does not express the full character of the transaction. Inasmuch as he is thus free to vary or contradict it by parol, his adversary, even though a party to the instrument, must be accorded the same privilege, and it is not necessary for either of them to allege fraud, accident or mistake. Godwin v. Banister, Tex. Civ. App. 242 S.W. 1098; Pennington v. Bevering et al., Tex. Civ. App. 9 S.W.2d 401; Long Bell Lumber Co. v. Futch et al., Tex. Civ. App. 20 S.W.2d 1076; Johnson v. Portwood et al., 89 Tex. 235,34 S.W. 596, 787; Hall, Com'r of Insurance and Banking, et al. v. San Jacinto State Bank et al., Tex. Civ. App. 255 S.W. 506; Hart et al. v. Meredith, 27 Tex. Civ. App. 271, 65 S.W. 507; Peters et al. v. Lerew et al., Tex. Civ. App. 139 S.W.2d 321.
The deeds involved were executed by Pat and Don Webb and conveyed the land to the appellant. Appellees were not parties to the deeds and were therefore not bound by the recitations contained in them. If they had recited considerations of love and affection, or that they were deeds of gift, or that the consideration was paid entirely from appellant's separate estate and that the land was conveyed to her as her separate property, and in addition, had recited contractual considerations, appellees would have been at liberty to show by extrinsic evidence, if they could, that such recitations were false and that the transaction was such as to make the land community property of appellant and her husband. Since appellees enjoyed that privilege, it would manifestly be unfair and discriminatory to deny appellant the same prerogative. The rule of law announced by the above authorities and many others that could be cited, and the reason therefor, are fully demonstrated by the record in this case.
The second contention is untenable because, although Don and Pat Webb were the sons of appellant, they were competent witnesses and, although appellant was interested in the property, she likewise was a competent witness. Article 3714, R.C.S. All three of them testified that appellant did not pay either the cash consideration of $300 recited in the deed of Pat Webb or the cash consideration of $1000 recited in the deed of Don Webb, and that there was no intention on the part of any of them that she should do so. They said they did know why the deeds expressed cash considerations. Their testimony was positive and unequivocal that the deeds were intended as gifts to their mother. The testimony was clear, certain and satisfactory. There was no evasion or ambiguity. It was explicit and free from any element of suspicion or equivocation. In fact, appellant's counsel made no effort to cross-examine either of the witnesses. The mere fact that Pat and Don Webb might have had remote expectancies in the estate of the appellant, their mother, did not render their testimony dubious, doubtful or suspicious nor prevent it from being clear and satisfactory; nor did the fact that appellant was interested in the transaction and in the property involved place her testimony beyond the pale of credibility. The testimony was uncontroverted and the court was not warranted in ignoring or rejecting it. It was entitled to the proper weight of undisputed testimony with no suspicion cast upon it. The testimony of these witnesses being the only testimony adduced by either side upon the question of whether the deeds constituted gifts to the appellant, the finding of the court in its judgment that the land involved was community property was in *Page 882 direct opposition to all of the testimony in the case upon that question and, in our opinion, the judgment is without support in the testimony. It is supported only by the legal presumption that the land was community property because it was conveyed to appellant during her coverture and the presumption was completely overcome by the testimony. Grand Fraternity v. Melton, 102 Tex. 399, 117 S.W. 788; Nobles et ux. v. Texas Indemnity Ins. Co., Tex.Com.App., 24 S.W.2d 367; Autrey v. E. Nelson Mfg. Lumber Co., Tex. Civ. App. 26 S.W.2d 298; Majors v. Turner, Tex. Civ. App. 280 S.W. 844; Trinity Gravel Co. et al. v. Cranke, Tex.Com.App., 282 S.W. 798; Buro v. Home Benefit Ass'n, Tex. Civ. App.28 S.W.2d 902.
We adhere to our original holding and appellees' motion for rehearing will be overruled.