Shepherd v. White , 11 Tex. 346 ( 1854 )

Lipscomb, J.

This suit was brought by Phebe Shepherd, widow of W. W. Shepherd, junior, and A. H. White, guardian of the minor children of W. W. Shepherd, the issue of his marriage with the said Phebe, to recover land in the possession of the plaintiffs in error, who were the defendants in the Court below. The plaintiffs claimed title under a deed, absolute on its face, to W. W. Shepherd, junior, deceased, and exhibited a regular chain of title derived from the original grantee. The defendants claimed as the widow and heirs of W. W. Shepherd, deceased, the father of W. W. Shepherd, junior, who had long lived upon, and died upon the land claimed by the plaintiffs. It seems that the families of the father and son, lived both on the land, and both died upon it, and the widow of W. W. Shepherd, junior, continued so to live until some time after the death of her husband, when she went to reside with her father. In opposition to the deed for the land to W. W. Shepherd, junior, the defendants set up title in W. W. Shepherd, senior, as a resulting trust to him, he having paid the purchase money; and as evidence rebutting the presumption, which in such cases the law would raise, that the purchase money being paid by the father, would be regarded as an advancement to him and did not raise a resulting trust, relied upon the written acknowledgment of the son, showing that it was not so advanced. The question was, therefore, narrowed down to the issue of trust or no trust. If it was not a trust, there was an end to the defence, as the defendants relied upon no other defence, to defeat the title of the plaintiffs. The supposed declaration of trust, was believed, by the defendants, to be found in an instrument duly executed by the said W. W. Shepherd, junior, and designed by him to be his will, shortly before his death. We will repeat, emphatically, what we ruled, when this case was before us on the correctness of the ruling of the Court below, in excluding that instrument as inadmissible evidence to establish the trust and rebut the presumption, that the payment of the money by the father was an advancement to the son. The principle that the presumption would be as stated, is admitted; and we proceed, “ But this presumption may be explained and re- “ butted by proof that such payment was not intended as an “advancement. Any written acknowledgment of the son “ that it was not so designed, will rebut the presumption, and “ let in the resulting trust. The will of the son was an ex- “ press declaration of the trust, and was conclusive as pre- “ sented, that it was not intended as an advancement.” (10 Tex. R. 72.) Upon the record, then before us, we believed that it was evidence of a declaration of trust, which opinion ought to have been strictly observed by the Court when the case was tried again, after the reversal. We will hereafter inquire whether it was so observed. An instrument, intended as a will, may not be valid, as such, under our testamentary laws, and yet valid for some other purposes. If it contains evidence of a declaration of trust, it would be legal evidence of such fact.

The plaintiffs in error allege, in their assignments, that the Court below erred in giving various instructions to the jury, at the request of the plaintiffs below; and also in refusing to give instructions asked by the defendants in that Court. We do not design discussing all those several charges given and refused, in detail, but will insert here, those believed to be in any way material to the rights of the parties, and then discuss the law upon them.

At the request of the plaintiffs below, the Jaclge charged the jury, that “ a written acknowledgment of the son, in a “ will, that the father ha'd paid the money for the son’s home- “ stead, is not evidence against the son’s widow and children, “ when the deed records that the son paid for it, and the father “ was a subscribing witness to the said deed.

“A written acknowledgment of the son, in a will, that the “father had paid the money for the land deeded by a third “ person to the son, is not evidence, against the widow, that “ the father paid for the land, if the land was purchased while “ the son was a married man.

“ The will of W. W. Shepherd, junior, does not seek to “give the land to the father, unless the father did pay the “ balance for the land ; and it is incumbent on the defendants “ to prove that the father did pay the balance on the said land.

“ That, under the Constitution and laws of Texas, in 1846, “ and ever since, a married man, in Texas, cannot, by will, “ dispose of the homestead of himself and family in Texas, “ without the consent of the wife evidenced as the statute “ requires.

“ In 1846, in Texas, a married man could not dispose of the “ homestead, unless the wife also executed the conveyance, “ and acknowledged it, privately and apart from the husband.

“ In Texas, a married man could not, in 1846 or before, or “ since, dispose of, by will, more than one half of the com- “ munity land.

“ If these tracts of land were bought by W. W. Shepherd, “ junior, after he married Phebe, the said lands are commun- “ ity, and one undivided half belongs to Phebe, notwithstand- “ ing any will the husband may have made.

“ That the husband cannot, without the consent of the wife, “ sell or transfer the legal or equitable title of the husband, “ and wife in the homestead.

“ That the husband can make no transfer, by will, of the “ homestead, that he could not make by deed.”

The following charges were asked by the defendants: “ If “ you believe the transcript read, purporting to be a copy of “ the will of the younger Shepherd, was the declaration of “ the younger Shepherd, it is an express declaration of trust, “ and conclusive that it was not intended as an advancement,” which was refused.

“ If the father pays for the land, and the deed is taken in 66 the name of the son, this would be presumed to be an ad- “ vancement; this presumption is rebutted by any written “ declaration of the son to the contrary, (and still leaves the “ title to the land in the father, who paid it.”) The Court refused to give the last part of the sentence (in parenthesis) as to the legal effect of the facts presented.

The first charge given, seems to have been predicated upon the erroneous assumption, that the fact of the father being a subscribing witness to the deed to the son, is a legal bar to raising a resulting trust in favor of the father. This is not true. The fact of the father being present and knowing that the deed was so taken in his son’s name, could not affect the trust; and the case is believed frequently to occur, that the deed may be so taken, as a matter of arrangement between the father and son, for reasons that neither of them were bound to disclose, because it may have been a matter between themselves, alone, and no matter of concern to any one else, except innocent purchasers and creditors without notice. Suppose that the father had borrowed the money from the son to make the payment of the purchase money, and for fear of some misfortune that would cause an inability in the father to refund the money so borrowed, it was thought best that the title should be made to the son for his better security: this supposed case is not unlike, in principle, the case of Boyd v. McLane, 1 Johns. Ch. 583, in which Chancellor Kent held, that the party taking the deed in his own name, took in trust for the use of the real purchaser; and in that case, though the real purchaser was not a witness to the deed, yet the facts show that it was agreed, between the borrower of the money, and the lender, that it should be so made. Kor is it believed that it has ever been held, that the fact of the payor of the money for the purchase of the land, knew that the deed was made to another person, defeated the resulting trust in favor of such person.

There is another inference, deducible from the charge given, that is equally erroneous, that is, that notwithstanding, from the evidence, a resulting trust would arise, yet it cannot be enforced, if the nominal grantee in the deed, had made it his homestead. This is not the law. If it was a resulting trust, and the nominal grantee held the land for the use of the real purchaser, the trustee could not acquire, upon the land, a homestead, free from and unincumbered by the trust; he could not claim the protection of the homestead law, any more than he could, if he had been a real purchaser, and taken the deed absolute, but given a mortgage on the land so purchased, to his vendor, to secure the purchase money. And in such a case, we have decided that the protection, thrown, by our statute, around the possession of the homestead, does not attach, (see Farmer v. Simpson, 6 Tex. R. 303,) until all previous liens had been satisfied or discharged. If the Court charged correctly, the result would be that the homestead privilege would overlay all previous equities, which is not the law. We believe the Court erred in giving this charge.

The principles embraced by the second ground of error, in the order we have transcribed them, have been discussed and disposed of by us, on the first, and need not be again noticed; only, that in this charge, the effect of the homestead law is more distinctly set out, and therefore it was more clearly erroneous.

The next charge given, in the abstract may be true; but taken in connection with the facts, it ought not to have been given, because it was irrelevant, and calculated to mislead the jury, and make them believe that the defendants claimed the land as a testamentary devise, coupled with a condition, when it was relied on as a declaration of the trust under which the title to the land in him was held; and this declaration, in what was intended as a will, was relied on, to show his trust character, and to rebut the presumption that would arise, from the relations of the parties to each other, that when the purchase money is paid by the father it is intended as an advancement, and not as a testamentary bequest to the father.

The construction and legal effect of this declaration will be discussed in another place.

The two next charges given, in the abstract may be true; but if true, interposed no defence against a resulting trust, as we have before shown; and were erroneous, because calculated to mislead the jury into the belief, that the homestead privilege would overlay the resulting trust, when it was acquired, if at all, incumbered with the trust, and all other existing liens at the time of its acquisition.

The other four charges may be disposed of in the same way. They present abstract questions, having no relation to the case; and if true, afford no ground to resist a resulting trust. If the deed was held in trust, the community of both husband and wife was subject to all the equities existing at the time the deed was executed. We have before said that if the defendants could successfully resist the claim of the plaintiffs, under the deed, it must be upon the ground that the deed was coupled with a resulting trust. If this was not shown, the plaintiffs’ title by the deed, could not be resisted, and must prevail. Homestead rights and community rights were then, alike, wholly thrown out of the investigation, in disposing of the case; and the charges ought not to have been given.

The charges asked by the defendants and refused by the Court a quo, for their correctness, depend upon the construction and legal effect of the supposed declaration of trust, made in writing by the holder of, and nominee of, the deed upon which the plaintiffs relied to sustain their action.

It is as follows: “ The place I now reside on is in my own “ name; and it being paid for by my father, all but the last “payments above mentioned for said land, and then the said “land above mentioned shall become the property of W. W. “ Shepherd, sen.; and he shall apply to the Probate Court, “ and have the deed of said recorded in his own name, to “ him and his heirs, to have and to hold, in every sense of the “ word and law, as if I had sold it to him and made a bona “ fide deed; and then said W. W. Shepherd shall pay to my “ heirs, Phebe C. Shepherd, or guardian, for the use of her “ and the educating of my bodily heirs, as before directed and “ described, one-third of the amount of money paid originally “ for the above described land.” It is badly constructed ; but it is the duty of the Court to construe it, if possible, according to its sense and meaning, and to declare its legal effect. This declaration, made by the nominal holder of the title, is so very awkward in the structure of sentences, and the phraseology, that it renders the sense and meaning somewhat obscure ; but we believe that in one part, however, the meaning is sufficiently clear and explicit, that two thirds of the purchase money was paid by his father, according to the terms of the original purchase, and that such payment entitled his father to the land. In this, we believe that we find conclusive evidence of a trust, and that the presumption of its being an advancement for the son’s benefit, is rebutted. We do not believe that the construction, contended for by the appellees’ counsel, that it was a sale from the son to the father, can be fairly deduced from the language employed. This declaration of the trust character of the deed, is, at any rate, clear in support of the father’s equitable title to two-thirds of the land ; but it is not so clear as to what should be done with the other one-third. The doctrine is believed to be well settled, that where apart of the purchase money has been paid, the trust shall be sustained pro tanto. See Botsford v. Burr, 2 Johns. Chan. 406, where the authorities are collected and examined by Ch. Kent. We believe that the declaration is to be taken altogether; and then, whilst on the one band it affords conclusive proof that two-thirds of the purchase money had been paid by the father, it, on the other, shows that the other third has not been paid by him. By what rule, then, shall the trust be enforced ? Shall we decree two-thirds of the land to the heirs and legal representatives of the father, and leave the one-third to be held by the legal representatives, or heirs, of the son, under the deed, and direct that a partition should be made ? This might be conveniently done, if the land in controversy was in a large tract; but it is small, and it might impair the rights of both parties, to direct a division. We are aware of no principle of chancery jurisdiction, that would restrain us from decreeing that the land should be charged with the satisfaction of this unpaid third of the purchase money. And it is believed that, in so decreeing, we would be sustained by analogy to decrees often rendered in proceedings had to establish and allow the equity of redemption in a case where the deed of conveyance for the land seemed, on its face, to be absolute and unincumbered, but, in reality, was intended, and so taken, as a security for the payment of money. In such cases, it is a constant practice, to decree a title to be made, upon the payment of money intended to be secured by the deed, or so much of it as remained unpaid, or to decree the title to be vested in the party to whom the land in equity belonged, on the payment of the money to be secured. The one or the other of these modes would depend upon the practice of the Court; though it is more convenient to vest the title, by the decree, in the party to whom it really belongs, without requiring a conveyance to be made. We are not aware from the record, of the true character of the transaction when this deed was executed ; but it is fair to presume that, though absolute on its face, it was really so taken as a security for the payment of money, or for something analogous to it. (See cases, 1 and 2, Johns Chan., cited above, for the analogy.)

If the fact that the instrument of writing, by whatever name designated, containing the declaration of the trust, was executed by W. W. Shepherd, jun., was admitted, there was nothing for the jury to pass upon, but to ascertain the amount of the one-third part of the original purchase money. If the fact of the execution of the writing by Shepherd, the younger, was not admitted, then they should have passed, also, upon that issue. The fact of the execution of the instrument, being established by the admission of the parties, or found by the jury, and the amount of the one-third of the purchase money unpaid, also found, the Court ought then to have entered the decree vesting the title in the heirs and legal representatives of Shepherd, sen., charged with the payment of the one-third part of the purchase money so found by the jury. The jury had nothing to do with giving a construction to the declaration ; it being in writing signed by the party, nor with its legal effect. So far as that instrument was regarded, they had only to say whether it had been executed by the party charged to have made the declaration. It was, exclusively, the province of the Judge to construe it, and to declare its legal effect.

When this case was formerly before us, our opinion was ■explicitly expressed, in disposing of it, that the declaration was conclusive in proof of the payment of the money, in rebutting the presumption that it was a voluntary advancement by the father to the son, and in establishing the trust; but we did not decide what should be done in relation to the unpaid third of the purchase money; and this omission may have caused the Judge, in trying this case again in the Court below, to have overlooked what we had expressly decided. His reputation forbids our indulging, for a moment, the belief that he would knowingly disregard the decisions of this Court, constitutionally organized to review and correct the decisions and judgments of the District Court. And whether the decisions here made are correct on sound principles of jurisprudence, or not, no other Court under the State jurisdiction can gainsay or refuse submission to them. After being so decided, they became the law of the land, governing all cases coming within their scope, until such decisions are here overruled by this Court. Judgment reversed, and cause remanded for a new trial, according to the opinion here expressed.

Ee versed and remanded,.