Mauritz v. Bell , 81 S.W.2d 730 ( 1934 )

GRAVES, Justice.

This general statement, deemed to be correct, has been taken from the appellee’s brief:

“-Eli Bell, appellee, brought this suit of trespass to try title in the district court of Jackson County, Texas, to recover certain land in that county. Appellee alleged, in substance, that on February 2, A. D. 1928, one J. M. Toas, as agent for appellee, purchased the land in question for appellee and paid for it with appellee’s money, but took the conveyance in his (Yoas’) name. This, ap-pellee said, made him the beneficial owner of the land, and Yoas a mere trustee. Subsequently, on December 10, A. D: 1929, Yoas conveyed the property to appellee for the recited consideration of $10.00 and a vendor’s lien note for $1250.00, secured by a deed of trust payable to the Guaranty Bond State Bank of Ganado, Texas. At the time of the conveyance of the land to Yoas (February 2, 1928), appellee, a married man, was occupying the property as a tenant, and thereafter he continued to occupy the property as his home. The Guaranty Bond State Bank knew all these facts; hence, it was appellee’s contention that the second transaction (i. e., the conveyance from Yoas to Bell, and the vendor’s lien note given to the bank by Bell on December 10, 1929) was a subterfuge to create a lien on Bell’s homestead.

“After this the note was renewed, and on or about the 26th day of January, A. D. 1932, the Guaranty Bond State Bank closed its doors; and the Citizens State Bank of Gana-do, .Texas, on March 11, A. D. 1932, acquired its assets, among them appellee’s $1250.00 vendor’s lien note, then past due.

“On May 3, A. D. 1932, the Citizens State Bank caused the land to be sold under the deed of trust, at which sale appellants became the purchaser.

“The trial court submitted the case to the jury on special issues, which were in substance: (1) whether Yoas purchased the land for appellee as his agent with appellee’s money, to which the jury answered, ‘Yes’; (2) if the Guaranty Bond State Bank or its officers had actual knowledge that Yoas — acting as agent for appellee — had purchased the land for appellee and that appellee was occupying the land as a homestead, to which the jury found also in the affirmative; and (3) if the $1250.00 note of appellee was given for any part of the purchase price of the land, to which the jury answered, ‘No.’

“On this verdict, the trial court rendered judgment in favor of appellee for the title and possession of the land in question.”

After a careful examination of the statement of facts, it is clear to this court that the evidence was sufficient to support each and all of the jury’s findings thus made; wherefore, the beneficial ownership of the land sued for became vested in the appellee as principal, the status of Yoas as his agent being that of a mere trustee; the law on this subject is summarized in 26 Ruling Case Law, page 1231, paragraph 77, in this brief statement: “In the first instance, where no question arising out of the relationship of the parties is involved, and the trust sought to be established is in land paid for-by one person with conveyance to another, it is necessary to show only that the cestui que trus.t furnished the purchase money for land in controversy, and that the deed was taken in the name of another, the trustee.”

A similar statement of it is also made by our Supreme Court in the early case of Neill v. Keese, 5 Tex. 23, 51 Am. Dec. 746, in this language: “The clear result of all the cases, without a single exception (says Story), is, that the trust of the legal estate, whether freehold, copyhold or leasehold; whether taken in the name of the purchaser and others jointly, or in the name of others without the purchaser; whether in one name or several; whether jointly, or successively, results to the man who advanced the purchase money. This is the general proposition supported by all the cases.”

To the same effect are these further authorities: Eastham v. Roundtree, 56 Tex. 110; Burns v. Ross, 71 Tex. 516, 9 S. W. 468; Hix et al. v. Armstrong, 101 Tex. 271, 106 S. W. 317; 28 Cyc., paragraph B, page 104; 2 Story Equity, §.1201, note 2a.

Furthermore, as was done in this instance, it was plainly competent to show such a trust as thus resulted in favor of the ap-pellee by parol evidence, notwithstanding the fact that the deed evidencing the original purchase ran directly to the contrary, in that it was made from Egg to Yoas in consideration of $400 cash in hand recited to have been paid by the latter to the former, as if they were the sole parties to the transaction, without mention of the appellee. Neill v. Keese, supra; Mead v. Randolph, 8 Tex. 191; Miller v. Thatcher, 9 Tex. 482, 60 Am. Dec. 172; McClenny v. Floyd’s Adm’r, 10 Tex. 159; James v. Fulcrod, 5 Tex. 512, 55 Am. Dec. 743; Brotherton v. Weathersby, 73 Tex. 471, 11 S. W. 505; Bailey v. Harris, 19 Tex. 108, 109; Cuney v. Dupree, 21 Tex. 211; Dunham v. Chatham, 21 Tex. 231, 73 Am. Dec. 228; Johnson v. Deloney, 35 Tex. 42; Strickland v. Baugh (Tex. Civ. App.) 169 S. W. 181; Addison v. Ball (Tex. Civ. App.) 262 S. W. 877; McWhorter v. Oliver (Tex. Civ. App.) 2 S.W.(2d) 281; Townsend v. Chaillett (Tex. Civ. App.) 45 S.W.(2d) 354; R. C. L. par. 75, page 1230; 39 Cyc. page 155.

Likewise, it was just as permissible to prove by parol—as wás conclusively done here—that the apparent sale of the property from Ypas and wife to the appellee, as in terms reflected on the face of their subsequent deed therefor to him of December 10 of 1929, reciting as its consideration the retention of a $1,250 vendor’s lien note against the same payable to the Guaranty Bond Bank of Ganado, together with a deed of trust thereon as further security for the note, was-in fact a mere subterfuge on the part of the bank and its officers in the abortive effort to-fix a lien upon what they had all along-known was the occupied homestead of the ap-pellee to secure a $1,250 loan from the bank to him accompanied by a deed of trust on the-property; in support of this latter conclusion, these authorities are cited: Stamper v. Johnson, 3 Tex. 1; Mead v. Randolph, 8 Tex. 191; Wiggins v. Wiggins, 16 Tex. Civ. App. 335, 40 S. W. 643; Stafford v. Stafford, 29 Tex. Civ. App. 73, 71. S. W. 984; Silliman v. Oliver (Tex. Civ. App.) 233 S. W. 867; Sammons v. Brunson (Tex. Civ. App.) 25 S. W.(2d) 685; Sammann v. Deitrich (Tex. Civ. App.) 39 S.W.(2d) 647.

As our introductory statement has shown, the $1,250 note for which the deed of trust so foreclosed against the land stood as security was past-due at the time the Citizens-State Bank—appellants’ predecessors in-claim under them both—acquired the same, along with the other assets of the closed Guaranty Bank; appellants and their grantor were therefore in no better position than the prior bank and its officers, hence the homestead defense was equally available to-the appellee as against them, there being, under the evidence and findings, no secret equities between the original parties they were not at least charged with knowledge of. 6 Texas Jurisprudence, p. 705, par. 92, and cited cases.

The complained of statements in his closing address to the jury of appellee’s counsel to the effect (1) that he knew Bell had testified that he had sold his 1927 rice crop for over $7,000 net and believed that Yoas had also done so, (2) that the appellants were in possession of the records of the Guaranty Bond State Bank, which would show the transfer of appellee Bell’s account to J. M. Yoas of the proceeds of the sale of such rice crop, are not thought to involve prejudicial error.

The first of these statements merely evidences what, for all else there appears, was a legitimate inference of counsel from the facts in evidence made in good faith, hence was permissible. Corn v. Crosby County Cattle Co. (Tex. Com. App.) 25 S.W.(2d) 290; Fidelity Union Fire Ins. Co. v. McDonald (Tex. Civ. App.) 249 S. W. 538; Zeiger v. Woodson (Tex. Civ. App.) 202 S. W. 163; International & G. N. R. Co. v. Davison (Tex. Civ. App.) 138 S. W. 1162; Moore v. Rogers, 84 Tex. 1, 19 S. W. 283; Hart Mfg. Co. v. Mann’s Boudoir Car Co., 65 Mich. 564, 32 N. W. 820; Ruling Case Law, vol. 2, par. 18, page 420; Corpus Juris, vol. 65, par. 285, page 267.

Not different in legal effect also was the second statement. From ail the facts and circumstances in evidence it was plainly a legitimate argument in support of a reasonable inference to the effect that the books and records of the bank, down under which the appellants had acquired their claim, would show whether or not the transfer counsel referred to appeared; especially since Toas himself had testified that this was done, it further appearing that the Citizens Bank had acquired everything the prior bank had, many of the records of which appellants introduced in evidence, and one of them having been president of the Citizens Bank at the time the conditions the criticized remark applied to existed; wherefore, there being some evidence from which such an inference was not unreasonable, the argument cannot be said to have been improper. Corpus Juris, vol. 64, par. 284, page 265; Ruling Case Law, vol. 2, par. 13, page 414; Kilpatrick v. Grand Trunk Ry. Co., 74 Vt. 288, 52 A. 531, 93 Am. St. Rep. 887; Morrill v. Palmer, 68 Vt. 1, 33 A. 829, 33 L. R. A. 411; Louisville & N. R. Co. v. Perkins, 165 Ala. 471, 51 So. 870, 21 Ann. Cas. 1073; Sutor v. Wood, 76 Tex. 403, 13 S. W. 321; Russell Coleman Oil Mill v. San Antonio, U. & G. R. Co. (Tex. Civ. App.) 37 S.W.(2d) 165; Corn v. Crosby County Cattle Co. (Tex. Com. App.) 25 S.W.(2d) 290; Merchants’ Life Ins. Co. v. Griswold (Tex. Civ. App.) 212 S. W. 807; Rust v. Page (Tex. Civ. App.) 52 S.W.(2d) 937.

What has been said disposes of all appellants’ contentions going to the merits of the appeal adversely to them; an affirmance of the judgment has accordingly been entered.

Affirmed.