Low v. Gray , 61 Tex. Civ. App. 487 ( 1910 )

This suit was brought, in the ordinary form of an action of trespass to try title, by George Gray against Fred, Louis, Earl and Laberta Low, Jennie Hale, W. Ed. Low, Clara Low, Fannie Huff, Charles W. Huff and F. N. Hale; and J. A. McWaid, W. A. McWaid and J. B. Low, and also J. F. Liken, to recover an undivided one-third of three thousand four hundred and ninety-six acres of land, situated in Colorado County, Texas, described in plaintiff's first amended original petition, upon which the case was tried. It alleged that all the defendants, except J. A. McWaid, W. A. McWaid and J. B. Low, and also J. F. Liken, are the heirs of W. H. Low, deceased, through whom they claim title, and that Liken also claims an undivided one-third interest in said three thousand four hundred and ninety-six acres.

The defendants, who are the appellants, interposed a general demurrer, pleaded the statutes of two, three, four, five and ten years' limitation, innocent purchasers, a general denial and not guilty.

The case was tried before the court without a jury and judgment was rendered in favor of plaintiff against defendants for one-third undivided interest in the land described in plaintiff's petition, as prayed for. From this judgment all the defendants except J. F. Liken, whose one-third was not affected by it, have appealed.

On October 11, 1900, Frank A. Ramsey executed a general warranty deed to W. H. Low conveying to him an undivided one-third interest in the land described in plaintiff's petition. It recites the consideration of $4,000, of which $2,500 is recited cash, and $1,770.66 in the grantee's assuming the payment of certain incumbrances on the land to that amount, with interest thereon.

And on October 13, 1900, Samuel S. Liken executed to W. H. Low a general warranty deed, conveying to him an undivided one-third interest in all of said lands. This deed recites, as the consideration, a deed from the grantee to the grantor to 320 acres of land in Washington County, Colorado, and the further consideration of $3,270.66 paid and secured to be paid as follows: $1,500 in cash, $1,770.66 by the grantee's assuming the payment of certain specified incumbrances on the land conveyed.

W. H. Low, through these two deeds, is the common source of title. The plaintiff claims under him through an express parol trust; all the defendants except J. A. McWaid, W. A. McWaid and J. B. Low, claim as his heirs; and each of the last-named defendants claims under a deed made to him by W. H. Low, conveying him two-thirds interest in a designated part of the land sued for. That J. F. Liken owns the remaining one-third of the land is conceded by all the parties. The heirship of such defendants as claim through W. H. Low by inheritance is not disputed.

The only issues of fact are: (1) Whether there was such a parol agreement between the plaintiff and W. H. Low, and performance of it on the part of the former, at the time the deeds above mentioned were made to the latter, as to vest equitable title to an undivided one-third interest in the land described in them in the plaintiff and constitute Low his trustee under said deeds as his trustee for such interest in the lands; (2) whether the McWaids and J. B. Low, or any of them, were bona fide purchasers for value without notice of plaintiff's equitable title at the time each purchased the part of the land claimed by him; and (3) whether plaintiff's equitable title was barred by any of the statutes of limitation.

Upon all these issues the trial court found as follows: "The deeds from Frank A. Ramsey and Samuel S. Liken to W. H. Low, referred to above, were executed in accordance with an agreement between the said W. H. Low and George Gray, the plaintiff herein, that they would purchase the land for their joint and equal benefit; that each would furnish one-half of the purchase price, and that the deeds should be taken in the name of W. H. Low alone, and the title to one-half of same to be held by Low for Gray. That the purpose of having the deed taken in the name of W. H. Low was that the said Gray and Low desired to also purchase another one-third in the 3,496 acres of land owned by John S. Liken, the reason being that, as the latter and plaintiff, George Gray, were enemies, it was believed that, if the name of plaintiff appeared as grantee in said deed, the said John S. Liken would not sell his said interest. In accordance with this agreement, and at the time of the execution of the deed, the said George Gray paid one-half of the purchase price. Immediately after the purchase of the lands conveyed to W. H. Low under the agreement between him and George Gray, George Gray, Jr., a son of the plaintiff, went into actual possession of the land as agent for his father and W. H. Low, and continued in such possession to the time of the judgment in this case, and such possession was during all that time open and notorious. It follows that when the two McWaids and James B. Low purchased from W. H. Low in 1903, George Gray, Jr., was in open and notorious possession of the premises as agent for the said W. H. Low and George Gray, and that the McWaids thereby had notice of the plaintiff's interest in the land. The defendant, J. F. Liken, is the owner of the undivided one-third of the lands in question not conveyed to W. H. Low by Frank Ramsey and by Samuel S. Liken. There was no adverse possession by W. H. Low of the land in litigation as against George Gray, and no adverse possession by George Gray against W. H. Low." If there were evidence reasonably tending to support these findings they are binding upon us; and, under the law applicable to them, the judgment must be affirmed.

The principal witness by whom plaintiffs sought to prove his equiable title to the land, was his son, George Gray, Jr. The testimony of this witness is vigorously assailed by the appellants, and they contend that it falls short of clearly and satisfactorily establishing such facts as are essential to show such title. While there are apparently some inconsistencies in his testimony, they are not irreconcilable. After reading and considering it all, as written in the statement of facts, in connection with the two letters written to plaintiff by W. H. Low, which were introduced in evidence, we are not prepared to say that it does not establish the affirmative of the first issue of fact, above stated, with the clearness and degree of satisfaction required to engraft a parol trust on the two above-mentioned deeds to Low, such as to vest in plaintiff an equitable title to the land sued for.

As to the second issue of fact, the burden was upon the appellants, J. A. and W. A. McWaid and J. B. Low, each to establish his plea of purchaser in good faith. In order to shoulder and carry this burden to a successful end it was necessary for each to prove, outside of the recitals in his deed, that he paid value for the land and that he purchased without notice, actual or constructive, of the plaintiff's equitable title to the same. In such proof each wholly failed.

As to the third issue of fact, the evidence clearly shows that George Gray, Jr., was, from the date of the deed to the time this action was instituted, in possession of the land in controversy, holding the same for his father, the plaintiff, under his equitable title. We, therefore, sustain and adopt the conclusions of fact above quoted of the trial court. This disposes of such of the assignments of error as attack such findings.

That an agreement to acquire land is not within the statute of frauds and need not be in writing is too well settled in this State to require citation of authorities.

The contention of appellants, that when the plaintiff brings an action of trespass to try title in the statutory form without seeking to annul the deeds conveying the legal title under which defendants hold, can not be maintained. In a case like this, the last thing the plaintiff should want to do, would be to have the deed under which the defendants hold, annulled. This would be an act of suicide to his own title; for he holds under such deeds, as well as the defendants. That an action of trespass to try title brought in the ordinary form may be maintained on an equitable title seems well settled in this State. Easterling v. Blythe, 7 Tex. 209; Martin v. Parker, 26 Tex. 254; Hill v. Moore, 62 Tex. 610 [62 Tex. 610]; Hardy v. Beaty, 84 Tex. 562; Mason v. Buider, 97 S.W. 715; Tompkins v. Broocks,43 S.W. 70; Betzer v. Goff, 35 Texas Civ. App. 406[35 Tex. Civ. App. 406].

While the deeds made by W. H. Low, conveying specific parts of the land respectively to J. A. McWaid, W. A. McWaid and J. B. Low respectively, can not be held to divest plaintiff's title to a one-third interest in said land, yet as W. H. Low's interest in the land exceeded the quantity of land included in these deeds, each of his vendees would be entitled to an interest in the entire tract equal to that conveyed to him, to be taken out of W. H. Low's or his heirs' share in said tract; and if, on final partition of the land between the several owners, the part conveyed each of said grantees can be allotted to him without prejudice to plaintiff's and Liken's interest in the land sued for, the partition should be so made as to award to each of such defendants the specific land deeded to him. Therefore the judgment of the District Court will be affirmed, without prejudice to such interest and right of any of said three defendants.

Affirmed without prejudice.

Writ of error refused.