This action was brought by Marx on three promissory notes executed by Earle on October 13, 1885, which on their faces purported to be given to secure the purchase money for seven hundred and fifty acres of land described in the petition, on which foreclosure of lien was sought. A copy of the deed from Marx to Earle was made an exhibit to the petition, bearing same date as the notes sued on, and containing a clause of general warranty.
The petitioner alleged that the land was the community property of himself and wife, deceased, at the time he made the conveyance to Earle, and that she left some children who were alive at the time that conveyance was made; but he alleged that Earle was fully informed of these facts when he received the conveyance and content to rely upon his warranty. He further alleged that he undertook to procure title to Earle from the children of his deceased wife, and tendered deeds from them. He also alleged that Earle took possession of the land at the time the deed and notes were executed, and that he had been in the uninterrupted possession since that time.
The pleadings of defendant are in substance thus stated correctly in brief for appellee:
"1. He excepted to plaintiff's petition because the heirs of Marx's wife were not made parties.
"2. He pleaded failure of consideration, and alleged that after he had discovered that the land in question was the community property of Marx and the heirs of his deceased wife he declined to proceed with the trade; that Marx immediately thereupon promised, contracted, and agreed that if defendant would * * * sign said notes he (plaintiff) would proceed to Galveston, where he and his children resided, and would forthwith perfect the title of such children's interest in said land to defendant; that thereupon defendant, relying on said contract and agreement and actuated thereby, agreed to and did sign said notes, * * * and plaintiff did sign said warranty deed; that so much of said contract as embraced said agreement to perfect the children's interest was not incorporated in said deed; that it was then and there understood between the parties that said transaction was not closed and was not to take effect and be operative until said plaintiff should perfect the title of said children's interest in said land to defendant; that defendant paid plaintiff $100 cash on delivery of the deed; that on July 1, 1886, he paid plaintiff $100; that on July 7, 1886, he *Page 42 paid him $100 in full on a $200 note he also gave as part payment of said land; that on November 3, 1887, he paid plaintiff $171.50 interest on the three notes on which plaintiff sues; that on November 3, 1887, he paid $8 taxes for plaintiff, which he agreed to credit on said notes; wherefore he prays for a cancellation of said notes and for a judgment for the aforesaid sums of money, aggregating $479.50."
Plaintiff filed the following exceptions:
"1. Plaintiff excepts to all of defendant's answer except the general demurrer and general denial, and says the same is insufficient in law because it does not allege an eviction; does not allege fraud or concealment; does not allege the insolvency of the plaintiff or that he did not have full knowledge of the defect of title set up at the time of the execution and delivery of the notes sued on, and does not allege any facts to show that the deed to the land does not convey full title.
"2. Plaintiff excepts to all that part of defendant's special answer which sets up a parol agreement between the parties hereto at the time of the execution and delivery of the deed of warranty to the seven hundred and fifty acres of land, and says that the same is not sufficient in law, because the same not in writing, as required by the statutes of fraud."
Which were sustained; and the parties went to trial on the general denial and plea of partial payment entered by defendant.
The cause was tried without a jury and resulted in a judgment for plaintiff, and in the absence of a statement of facts it must be presumed that all the material facts alleged were proved.
It is urged that the court erred in overruling defendant's exception which raised the question of necessity to make plaintiff's children parties, but we do not find that the court made or was requested to make any ruling on that question, but had the exception been overruled this would not have been erroneous. The notes were payable to the plaintiff, and it was a matter of no concern to the defendant what the arrangement may have been between the children and their father by which his title was perfected. The children had no claim on him resulting from the fact that he had made the notes to their father, nor from the fact that their father had made a deed to defendant.
The verbal agreement set up in defendant's answer was alleged to have been made contemporaneously with the execution and delivery of the deed and notes, which within themselves evidence a completed written contract, and the averments do not present a case in which the original contract was verbal and entire and a part only of it reduced to writing.
While it has been held in that class of cases last referred to that parol evidence would be heard to show what the entire contract was, we are of opinion that the answer did not make a case in which parol evidence ought to be heard to contradict or vary the written contract, and for *Page 43 this reason if for no other the court below did not err in sustaining plaintiff's second special exception.
The other defense to which the court sustained an exception was, in effect, that there had been a partial breach of the warranty, and the exception states sufficiently the grounds on which the court below correctly ruled that so much of the answer set up no sufficient defense to the action. Cooper v. Singleton, 19 Tex. 260; Carson v. Kelly,57 Tex. 379; Fagan v. McWhirter, 71 Tex. 567.
Finding no error in the judgment, it will be affirmed.
Affirmed.
Delivered February 24, 1891.