Finney v. Finney , 164 S.W.2d 263 ( 1942 )

The writer prepared the opinion in accordance with the conclusions reached by the majority, but being unable to agree with such conclusions, respectfully dissents, because he believes that the motion for a rehearing should be sustained and the judgment of the trial court affirmed, for the following reasons:

At the outset, let me say that the appellant has waived any and all objections to the issues that were submitted to the jury. There is no point or assignment of error in appellant's brief that attempts to raise the question of the form of any issue as submitted or the question of there being no evidence to support the issues, or the question of no evidence to support the finding of the jury on any issue.

Each point — the first ten in the brief — refers specifically to the paragraph in the motion for a new trial on which it is bottomed and not one raises any of the questions mentioned above.

Therefore, it is fundamental that this court will not consider the mere form of the issue, nor will it consider the question of the sufficiency of the evidence to support the giving of any issue or the sufficiency of the evidence to support the finding of the jury on any issue.

All of these matters were waived by the appellant because they were not brought forward in his brief.

To sum up appellant's contentions, we find him standing on the verdict, but saying that the findings of the jury preclude a judgment in plaintiff's favor, because her cause of action is barred by the statute of limitations of four years; and also that the trial court should have peremptorily instructed the jury for appellant, because the evidence shows that her cause of action was thus barred.

It is likewise fundamental that where the appellate court must look to the statement of facts to find error, such error is not one that is fundamental and it must be raised in the motion for a new trial, in a jury case, and must be brought forward in the appellant's brief.

The writer is of opinion that the findings made by the jury amply support the judgment of the trial court. They are sufficient to establish a trust in favor of the plaintiff and she was entitled to the relief sought.

The fact that the trial court cancelled and annulled the instruments mentioned in the judgment is of no moment.

A judgment removing the clouds from the plaintiff's title is of like effect, and such relief is permissible in an action such as is before us.

The forepart, or first count, of the plaintiff's petition is in trespass to try title. She seeks to recover the title to the property that she theretofore had conveyed to the defendant — her son.

The theory on which she attempts to recover is that of establishing a trust in her favor, although the legal title was vested in her son through the said deed. She is attempting to show an equitable title.

It seems conclusively settled that the right to recover, in such a case as is before us, is given to a plaintiff whose pleadings are in statutory form in trespass to try title. Texas Creosoting Co. et al. v. Hartburg Lumber Co., Tex.Com.App., 16 S.W.2d 255, on motion for rehearing. See original opinion, Id., Tex.Com.App., 12 S.W.2d 169.

In the opinion on motion for a rehearing many Texas cases are digested and cited.

The opinion states emphatically that under an ordinary trespass to try title case a plaintiff can recover by showing that he holds an equitable title as against a defendant who holds a legal title.

See Blumenthal v. Nussbaum, Tex. Civ. App. 195 S.W. 275, which was cited with approval in the Texas Creosoting Co. case, supra, and Wade v. Boyd,24 Tex. Civ. App. 492, 60 S.W. 360, writ refused, and Morris v. Rhine, Tex.Sup., 8 S.W. 315.

See, also, Robinson v. Faville et al., Tex. Civ. App. 213 S.W. 316, writ refused 111 Tex. 48, 227 S.W. 938.

In Hall v. Miller, Tex. Civ. App. 147 S.W.2d 266, writ dismissed, correct judgment, it is said that the interest of the cestui que trust under a constructive trust is an equitable title and not a mere equitable right.

Under the circumstances shown in the case at bar the statute of limitations of four years — Article 5529, Vernon's Civil Statutes — does not apply, and plaintiff's cause of action is not barred.

She is not seeking to cancel and rescind the deed she made to her son. She is standing on the deed and seeking to establish a trust in her favor because of the execution and existence of the deed.

See Carl v. Settegast, Tex.Com.App., 237 S.W. 238, and Gilmore v. O'Neil, 107 Tex. 18, 173 S.W. 203, and Faville v. Robinson, 111 Tex. 48,227 S.W. 938, and Hill v. Stampfli, Tex.Com.App., 290 S.W. 522, and many cases cited in the opinion of the Commission of Appeals, expressly approved by the Supreme Court.

The facts adduced and those found by the jury render it inequitable and unjust for the appellant to hold and retain the title to this land as against the asserted right of his aged mother.

Therefore, appellee's motion for a rehearing should be granted and the judgment of the trial court should be affirmed.