Henderson v. Rushing , 47 Tex. Civ. App. 485 ( 1907 )

This is an action of trespass to try title instituted by appellant M. M. Henderson, joined by her husband (Simon Henderson), to recover from appellees a lot of land situated in the town of Walnut Springs, Texas. The court before whom the case was tried entered a judgment for the defendants and the plaintiffs have appealed.

The contention of appellants is that upon the facts found by the District Judge, there being no statement of facts, judgment should have been entered in their favor. The facts found are:

"I find that both plaintiffs and defendants claim the land described in the plaintiffs plea from a common source, to wit: Chambers. That the plaintiffs claim through a deed from said Chambers to P. Henderson dated January 10, 1901, and filed for record on December 10, 1902. Consideration expressed in said deed was $15 cash and the grantee's notes therein, to wit: fourteen notes, each for $10, due and payable monthly, except the last note, which is for five dollars, and that the cash paid at the date of the deed was paid by the grantee, and that the notes were all paid by the grantee, P. Henderson, and that $25 of grantee's money was used in paving said notes and $60 of said money was furnished by the plaintiff M. M. Henderson, and $20 by the other plaintiff; $25 was furnished by the son of plaintiffs, who was a minor, and that when all of said notes had been (paid), the grantee demanded of the party who held said notes, to wit: — Myers — (a release), and which release was executed by said Myers and a deed from P. Henderson to the plaintiff M. M. Henderson, expressing a consideration of $225 cash and dated 5th day of December, 1902, and filed for record December 10, 1902, and that the consideration was paid in consideration of $105 furnished him to pay the notes he executed for said land when deeded to him and for services said M. M. Henderson had rendered him prior to that time.

"I also find that before said land was bought by Henderson, said P. Henderson and M. M. Henderson had a verbal agreement that said P. Henderson should buy said land for her, but that she furnished no money prior to the purchasing said land on or at the time of the purchasing same, to pay for said land. I refer to said deeds and release for a full description of same. I further find that the defendants claimed said land by virtue of a suit brought in Justice Court, Precinct No. 3, of Bosque County, Texas, on 2d day of December, 1902, by defendants in this suit against P. Henderson for $103.50, and on said day and date there was an attachment issued in said case in said Justice Court in favor of plaintiffs in said Justice Court, and against P. Henderson, defendant therein, and on said day and date levied on said land in controversy, and that on 14th day of February, 1903, there was a judgment rendered in said case in said Justice Court in favor of plaintiffs therein and against the defendant P. Henderson for $103.50, and costs of suit, and reciting the levy and issuance of said attachment, and that on the 27th day of August, 1903, there was an execution issued on said judgment and duly levied on said land and duly advertised and sold on 1st Tuesday in October, 1903, and bought by plaintiffs in execution and defendants in this suit for $85, which bid was credited on said judgment and deed duly executed by the officer to plaintiffs in said execution for said land."

We sustain appellant's contention for the following reasons: The agreement between P. Henderson and appellant M. M. Henderson, by the terms of which the former was to buy the land for the latter, constituted a parol, express trust which, under the decisions in this State, was not subject either to the statute of frauds or to the registration statutes. Brown v. Jackson, 40 S.W. Rep., 162; Hawkins v. Willard, 38 S.W. Rep., 365. The case last cited is peculiarly applicable. In that case one Josephine Hawkins conveyed land to her son, B. O. Hawkins, to enable him to borrow money with which she might discharge a lien against the same. The lien, however, having been discharged in another way, the son reconveyed the property to his mother, but this conveyance was not placed of record until a creditor of B. O. Hawkins had seized the land under a writ of execution. It was decided that the holding of the son was in trust for his mother, and that her equitable rights, not being subject either to the statute of frauds or of registration, were superior to those of the execution creditor, and that the threatened sale would be enjoined at her instance.

The doctrine of innocent purchaser is not invoked in the case, nor could it be successfully, since appellees merely credited the amount of their bid on their judgment against P. Henderson. Orme v. Roberts, 33 Tex. 768; Delespine v. Campbell, 52 Tex. 4; Cobb v. Trammell, 9 Texas Civ. App. 534[9 Tex. Civ. App. 534].

The judgment of the District Court is therefore reversed and judgment here rendered in favor of appellants.

ON REHEARING. The rule invoked by appellee to the effect that the facts which show a trust in land must exist at the instant the title passes, and that no prior or subsequent verbal agreements of the parties will create a trust, is true only of resulting trusts, and most of the authorities cited are of that character. It is not at all true with reference to parol express trusts, for they invariably grow out of prior oral agreements and have always been sustained when the facts warrant it. See Gardner v. Rundell, 70 Tex. 453; Lucia v. Adams, 82 S.W. Rep., 335; Stafford v. Stafford, 71 S.W. Rep., 984; 96 Tex. 106.

It is insisted that we erred in rendering judgment for appellant M. M. Henderson because the property recovered is shown conclusively to be the community property of Mrs. Henderson and her husband. But let it be so, no error appears inasmuch as both the husband and wife are made parties plaintiff in the amended original petition upon which the case was tried, and both prayed for a recovery and no exception was at any time interposed to the unnecessary joinder of Mrs. Henderson as a plaintiff. It is not conceived how any injury has resulted to appellees in this respect. In such a case no ground for reversal is shown. San Antonio St. Ry. Co. v. Helm,64 Tex. 147; Johnson v. Erado, 50 S.W. Rep., 139; Speer, Married Women, sec. 287. Besides, the judgment here rendered is in favor of both plaintiffs generally and it certainly can not be that the husband in such a case, as representative of the community, would not be concluded by the judgment. The motion for a rehearing is therefore overruled.

Reversed and rendered.

Writ of error refused.