Spiers v. Purcell , 2 Posey 624 ( 1879 )

Opinion.— Many of the errors assigned could not be considered by the court, as the appellant therein fails to distinctly specify the grounds of error; in such case the statute in force at the time this appeal was perfected requires them to be considered as waived. P. D., art. 1591.

. Counsel for appellant, in their brief, only insist that the court erred in the charge given and those asked and refused.

The appellant sets up in his petition a trust upon the land created by parol agreement. Since the decisions in the case of James v. Fulcrod, 5 Tex., 512, it has been considered as well settled that such an agreement is not required to be in writing and is not affected by the statute of frauds.

In the case of Cuney v. Dupree, 21 Tex., 219, it is said: “It has been held that, although reduced to writing, a verbal trust may be shown to have been annexed to the contract. To be enforced, however, a rule of equity requires that it shall be established with clearness and certainty.”

These trusts are of two kinds: such as arise from a verbal agreement, and such as are implied or result from the nature of the transaction. The case made by the petition is that of a trust created by verbal agreement between the appellant and Purcell; and the court, in the charge, confined the appellant’s right to recover to the allegations contained in his petition, and in that view of the case fully and clearly submitted the law to the jury. The first charge asked by appellant and refused sought to present to the jury an issue of the existence of an implied or resulting trust in his behalf in the land; this was correctly refused, because it was an issue not made by the pleadings. The other charge asked and refused correctly presented the law of the case, but it was also properly refused for that it was embraced in the general charge of the court in almost the same language as that which was asked and refused. The verdict of the jury upon this branch of the case is well sustained by the evidence. We are of the opinion that the evidence disclosed by the record not only does not clearly show the existence of the trust as claimed, but would not support a verdict affirming the existence of such a trust.

As to the question of costs, this was an equitable proceeding, and this question is left to the discretion of the court. Anderson v. McKinney, 22 Tex., 654.

Also when the judgment as to a portion of the matters in controversy is given for one of the parties, and against him as to other matters, the question of costs is left to the discretion of the court. Cannon v. Hemphill, 7 Tex., 207.

There is no error in that portion of the judgment appealed from, and therefore a proper disposition of this appeal will be to affirm the judgment.

Affirmed.