Burns v. Ross , 71 Tex. 516 ( 1888 )

Acker, Judge.

Plaintiff in error brought this suit against defendants in error as heirs and representatives of W. B. Ross, deceased, on the twenty-seventh day of September, 1886, to recover one hundred acres of land, part of the William Slaughter league. It was alleged in the petition that the land was purchased by plaintiff in error, and the consideration therefor furnished by him, but that the conveyance was made to W. B. Ross without plaintiff’s knowledge or consent, and through the fraud and misrepresentation of W. B. Ross.

Defendants in error answered by general denial, not guilty, and special defenses not necessary to mention here.

The case was tried by a jury, October 12, 1886, resulting in a verdict and judgment for the defendants. The court charged the jury as follows: “The questions of fact which you are to determine by your verdict are: First. Was Burns induced to purchase Gavin’s land in consideration of Thomas’s promise to convey bim (Burns) the one hundred acres of land in dispute? Second. Did Boss, at the time or prior to the execution of the deed to him, agree to convey the land to Burns? If you are satisfied to answer both of these questions in the affirmative, from a preponderance of creditable evidence in the case, you will find for plaintiff; if not so satisfied, for defendants.”

The plaintiff requested the following special instruction, which was refused by the court: “The promise, if any, made by W. B. Ross at the time of receiving the deeds to the land in controversy, will entitle plaintiff to recover, whether such promise was an express or implied promise; and such promise will be implied if the jury believe that plaintiff furnished the consideration for the purchase of said land.”

Under proper assignment of error, it is contended that the court erred in the charge given and in refusing the special charge requested, and this is the only question involved in this appeal. If the consideration for the land was actually furnished by plaintiff, a trust resulted in his favor at the time the legal title was conveyed to Boss, and his right to recover the legal title and possession of the land was not dependent upon an express agreement upon the part of Boss to convey the land to him. By implication, equity charges Boss with the duties and liabilities arising upon such an express agreement. (McKamey v. Thorp, 61 Texas, 648; 2 Pomeroy’s Equity, secs. 981, 1031.)

We think the court below erred in the second paragraph of the charge given, and in refusing the special instruction requested by plaintiff, for which the judgment should be reversed and the cause remanded. '

Reversed and remanded.

Opinion adopted October 23, 1888.

Station,

Chief Justice.