DocketNumber: No. 12659
Citation Numbers: 268 S.W.2d 558
Judges: Norvell
Filed Date: 4/28/1954
Status: Precedential
Modified Date: 10/1/2021
This is an’appeal from a judgment establishing a parol trust in real estate. Trial was to a jury and the following statement is made from the undisputed evidence and the jury’s findings:
The trial court upon motion properly disregarded an issue based upon the five-year statute of limitations, Article 5509, Vernon’s Ann.Tex.Stats., as being wholly without support in the evidence, 44 Tex. Jur. 748, and rendered judgment “that a trust be impressed upon the property and that a fee simple title be fixed in favor of the following parties respectively: Frank E. Powe, a one-third (⅛) interest; G. L. Dunham and wife, Nettie E. Dunham, a one-third (⅛) interest; (and) Bertha A. Powe, a one-third (⅛) interest * * The money equities between the parties resulting from the differences in amounts paid upon the. purchase price and the sum received for Lot 4, were likewise adjusted.
Appellant contends that the jury’s answer to Special Issue No. 1, wherein it found that Dunham and the Powe brothers entered into an agreement to acquire the property jointly is without support in the evidence, as it appears that Frank E. Powe was in Honolulu the day Dunham signed the contract with Gebhardt. It appears, however, that prior to the signing of the agreement, the matter of acquiring .a home for the aged parents of the Powe children had been discussed, and an agreement made to acquire such property. Frank E. Powe was present at these conversations and it was not necessary that he be physically present when Dunham carried the general agreement into execution. It appears that the contract of purchase was signed by Jasper A. Powe, as well as by Dunham, and that Dunham, who acquired the legal title from Gebhardt, at all times recognized Frank E. Powe’s interest in the
Appellant, in effect, contends that the conveyance from Dunham to Jasper A. Powe destroyed the trust. This argument must be considered in the light of the jury’s finding that the property was originally purchased for the benefit of Frank E. Powe, Jasper A. Powe and the Dun-hams, although the legal title was taken in the name of G. L. Dunham. According to Dunham, he conveyed the property to Jasper A. Powe because Frank E. Powe was in the Navy and he, Dunham, expected to be drafted. At the time Jasper A. Powe was in the Canal Zone, but was expected back in San Antonio, and he “would be the logical person to take care of the place during the war.” From the warranty clause of the conveyance, there was excepted the two liens against the property. While it is true that Jasper A. Powe was not in San Antonio at the time the deed of conveyance was executed and placed of record by Dunham, he knew that Dunham held the legal title as a trustee. This is shown conclusively, inasmuch as he signed the agreement which resulted in the conveyance of the property to Dunham. It also appears that Jasper A. Powe paid no consideration for this conveyance, and under the circumstances it can not be concluded that he received anything more than the legal title. The parents, A; E. Powe and Lillian E. Powe, continued to reside upon the premises and apparently the property was handled in much the same way as it had been when the legal title thereto was in Dunham, with the exception that Jasper A. Powe was substituted for Dun-ham as the trustee. The fact that the deed to Jasper A. Powe contained a provision that he took subject to the liens then outstanding against the property, did not prevent appellees’ showing by evidence, oral, circumstantial or otherwise, that Jasper A. Powe took as a trustee only. Cluck v. Sheets, 141 Tex. 219, 171 S.W.2d 860; Grantham v. Anderson, Tex.Civ.App., 211 S.W.2d 275; 65 Corpus Juris, Trusts, § 296; Restatement of the Law, Trusts, § 29. We need not consider the Texas Trust Act of 1943, Article 7425b-l, Vernon’s Ann.Civ.Tex.Stats., as the parol trust asserted in this case arose before the effective date of said Act. Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471; Hueschen v. Dunn, Tex.Civ.App., 219 S.W.2d 586.
What has been said effectively disposes of this case. In the state of the record and the instructions of the trial judge, we are of the opinion that appellant’s points relating to argument of counsel do not present a reversible error. Van v. Webb, Tex.Civ.App., 237 S.W.2d 827; Carson v. Amberson, Tex.Civ.App., 148 S.W.2d 972.
All of appellant’s points have been considered. None of them present a reversible error and the judgment is accordingly affirmed.