On Motion for Rehearing.
In a very able motion for rehearing, appellant contends the evidence admitted tended to vary the terms of the deed from the Lobstein to Mrs. Neie and was incompetent and cannot be considered. It is his contention that the consideration expressed in the deed is contractual and in the absence of allegations of fraud, accident, or mistake, cannot be varied by parol evidence. The general rule in Texas is that extrinsic evidence is not admissible to vary a recital of a consideration in a deed which is contractual in nature. - 14 Tex. Jur., page 814, Sec. 54. The deed from Lobstein and wife to Mrs. Neie recited a consideration of $1,000 paid and secured to be paid by Mrs. Clemmie Neie out of her own separate funds; $340 cash and tin: further consideration that W. IÍ. Neie had executed four vendor’s lien notes. The recital of the consideration paid in cash is not contractual in nature and. can be varied without allegation of fraud, accident or mistake. 14 Tex.Jur., 812; 23 Tex.Jur. 360. Evidence admitted to the effect that the $340 cash was paid out of the separate funds of the plaintiff Neie was admissible.
Further, the testimony that the vendor’s lien notes were paid out of the community funds of Neie and his former wife, Mrs. Bull, was also admissible. It was not necessary for Neie to plead fraud, accident or mistake.
The deed recited the consideration to be $1000 paid “and secured to be paid by Mrs. Clemmie Neie, out of her separate funds, as follows:
*984“Three Hundred Forty Dollars cash in hand, receipt of which is hereby acknowledged, and the further consideration that the said W. H. Neie has executed four vendor’s lien notes of even date herewith, each for the sum of $165.00, * *
The deed being executed to Mrs. Neie while married to W. H. Neie, the presumption arose that the lots were community property. John Hancock Mat. Life Ins. Co. v. Bennett, 133 Tex. 450, 128 S.W. 2d 791; 23 Tex.Jur., 355, 358. The presumption certainly was not conclusively rebutted by recitals in the deed. As to the credit portion of the purchase price, in order for the deed to evidence the fact that the lot was the separate property of Mrs. Neie, it was essential that the deed show that the purchase was made with the bona fide intention that Mr. Neie was to pay the notes out of her own funds and that the credit was extended to her alone and not to the husband or the community. 23 Tex.Jur., 92; Attebery v. Stringer, Tex. Civ.App., 3 S.W.2d 935 (writ dis.); Gleich v. Bongio, 128 Tex. 606, 612, 99 S.W.2d 881. The deed shows on its face that the lot was purchased with an obligation binding on the husband. The vendor’s lien notes were signed by the husband alone. Neither the deed nor any other evidence tends to show the fact essential to support appellant’s contention that the vendor agreed with the vendee to look only to the separate estate of Mrs. Neie for satisfaction of the deferred payments.
The deed shows that the deferred payments were to be paid by Mr. Neie. He alone executed the notes. The language of the deed, we think, requires the conclusion that the lot was community property. If, however, the general statement in the deed that the deferred payments were “secured” to be paid out of the separate funds of Mrs. Neie (which is clearly refuted by the recitals that Mr. Neie alone executed the notes) constitutes an ambiguity. Parol evidence was admissible to explain the ambiguity consistent with the statement in the deed that the consideration for the deed, in addition to the cash paid, was “that the said W. H. Neie has executed four vendor’s lien -notes of even date herewith, each for the sum of $165.00 * * 17 Tex.Jur. 865; Magnolia Warehouse & Storage Company v. Davis & Blackwell, 108 Tex. 422, 425, 195 S.W. 184.
There is another reason not discussed in our original opinion why this case should be affirmed. It is our opinion the divorce suit between plaintiff and Iris former wife settled their property rights and the defendant Morris is estopped to assert that the property in question is the separate property of Mrs. Bull. As stated in our original opinion, Mrs. Bull (formerly Mrs. Neie) in her divorce petition filed against her former husband, W. H. Neie, alleged that the property involved herein was community property. The court found as a fact that such property was the community property of the plaintiff and his former wife. The defendant in this case took no greater interest in the property Under his deed from Mrs. Bull than she had therein. 26 Tex.Jur., page 192.
The motion for rehearing is overruled.