Alexander v. Harris

• Decision Date: 05 May 1923
• Docket Number: (No. 10229.)
• Citation: Alexander v. Harris, 254 S.W. 146 (Tex. App. 1923)
• Parties: ALEXANDER et al. v. HARRIS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

254 S.W. 146

ALEXANDER et al. v. HARRIS.^*

(No. 10229.)

Court of Civil Appeals of Texas. Fort Worth.

May 5, 1923.

Rehearing Denied June 9, 1923.

Appeal from District Court, Erath County; J. B. Keith, Judge.

Suit by Marie Alexander and another against John G. Harris. Judgment for defendant, and plaintiffs appeal. Reversed and rendered.

Thompson, Barwise, Wharton & Hiner, of Forth Worth, for appellants.

A. P. Young and Chandler & Pannill, all of Stephenville, for appellee.

DUNKLIN, J.

H. C. Alexander and Miss Lizzie R. Shelby were married on August 3, 1901. Prior to their marriage, H. C. Alexander had acquired an undivided one-third interest in 160 acres of land situated in Erath county, known as the W. W. Jones survey. After their marriage and during the marriage relation, Alexander acquired the remaining undivided two-thirds interest in the 160-acre tract and also 10 acres out of an adjoining tract, which was a part of the Jesse Van survey, and the two tracts were occupied and used as the homestead of the family during the existence of the entire marriage relation, which continued from August 3, 1901, until the death of the wife, which occurred January 15, 1907. Three children were born of that marriage, to wit, Marie, born September 23, 1903, Lucille, born February 18, 1905, and an infant who, together with the mother, was burned to death on January 15, 1907. The undivided two-thirds interest in the 160-acre survey and the 10 acres out of the Jesse Van survey, both of which were purchased during the marriage with community funds, became the community property of the husband and wife, while the undivided one-third interest in the 160-acre survey, which was purchased before the marriage, was the separate property of H. C. Alexander.

The record shows that if there were any community debts owing at the date of the death of Mrs. Alexander, the same were paid out of the community funds, and that there was no administration or necessity therefor either upon the community estate or upon the estate of Mrs. Alexander. After the death of Mrs. Lizzie Alexander, H. C. Alexander continued to live upon the land as his homestead, together with his two minor children, Marie and Lucille, until August, 1917, when he left it temporarily and remained away until he sold the same to John G. Harris on November 23, 1917, for the sum of $2,600 cash in hand paid, about one-half of which consideration was applied by Harris, who was president of the Dublin National Bank, to the payment of two debts then owing by Alexander, one of which was in favor of that bank and the other in favor of a sister of Mr. Harris. Alexander was joined in that deed by Mrs. Lula F. Alexander, to whom he was married in December, 1914. On the 11th of September, 1918, John G. Harris sold the land mentioned above to John J. Adams for a consideration of $3,500. Thereafter, John J. Adams instituted suit to remove cloud from his title to the land in which Marie and Lucille Alexander were made parties defendant. A guardian ad litem was appointed by the court to represent those two defendants, who were minors. The guardian ad litem, in addition to defensive pleadings to plaintiff's suit, filed a cross-action in which he sought to recover of the plaintiff for the minors, their mother's community interest in the land. To that cross-action plaintiff filed a plea of innocent purchaser, and upon that plea the minors were denied a recovery on their cross-action and by the judgment rendered in that case full title to the property was decreed to be vested in the plaintiff Adams.

After the rendition of that judgment, Marie and Lucille Alexander, through their father, H. C. Alexander, as next friend, instituted the present suit against John G. Harris, the vendee of their father, to recover the sum of $5,000, alleged to be the reasonable market value of their interest in the land, which they alleged was converted by Harris by reason of the facts recited above, which were alleged in their petition, or, in the alternative, for the sum of $1,750, with 6 per cent. interest thereon from September 11, 1918, the date when the defendant sold the land to Adams; said amount being alleged to be the proceeds received by Harris from the sale of the plaintiffs' interest in the land.

As shown in plaintiffs' pleading the theory upon which they sought to recover one-half of the proceeds of the sale of the land to Adams was that H. C. Alexander, their father, held title to the interest owned by the plaintiffs as trustee for them; that, at the time defendant purchased the land from their father and at the time he sold the same to Adams, he knew of the community interest of their mother in the land, and knew that such interest had been inherited by plaintiffs as her children, and therefore, he, likewise, became a trustee in equity for plaintiffs, and was liable to them for the proceeds of the sale of the interest so held by him in trust for them, and which interest he sold to an innocent purchaser who, by reason of being such, acquired title to such interest.

The statement of facts contains the following:

"Now at the close of the testimony, the plaintiffs, not having introduced any testimony as to the present value of the land, now elect to seek a recovery and an accounting for one-half the purchase price received by Mr. Harris (defendant) in the sale to Mr. Adams, with 6 per cent. interest thereon from the date of said sale."

The trial was before the court without a jury, and judgment was rendered denying plaintiffs a recovery, from which judgment plaintiffs have prosecuted this appeal.

The essential and primary basis for the relief claimed by plaintiffs in the alternative prayer in their petition is the contention urged both in their pleadings and in briefs here that, upon the principles of equity, the father, H. C. Alexander, held title to their equitable interest in the land in trust for them, that the defendant purchased that title with notice of their interest, and thereby became a substitute trustee in place of their father, and having sold the same to an innocent purchaser and thereby deprived them of a recovery of the property, he is liable to them for the proceeds of the sale received by him.

In the able brief filed by counsel for appellee, many authorities are cited to sustain the contention that H. C. Alexander and the two children were tenants in common only, and that the relation of trustee and cestui que trust did not arise by virtue of the fact that he held the legal title to the property, and there were no community debts to be paid by the sale of it. Some of those authorities are Miller v. Miller, 34 Tex. Civ. App. 367, 78 S. W. 1085, writ refused; Wingo v. Rudder, 103 Tex. 150, 124 S. W. 899; Wiess v. Goodhue, 98 Tex. 274, 83 S. W. 178. In those cases the issue involved was whether or not the statute of limitation applied in favor of a survivor of the material relation as against heirs suing to recover the community interest of their mother, which they inherited from her upon her death, and in those decisions, and others which might be added, it was held that the survivor and the heirs were tenants in common, which relation did not preclude the survivor from invoking the statute of limitation after adverse possession was claimed by him and notice of such adverse claim brought home to the heirs. In other words, the substance of those decisions was to the effect that no such relation of trustee and cestui que trust existed between the surviving father and the children as would preclude him from claiming title under the statute of limitation when the proper predicate for such claim was laid. Other authorities containing statements to the effect that the surviving parent holding legal title to community property is not a trustee for his children, who inherited their mother's community interest therein with respect to the issues therein discussed, are noted in the opinion of Chief Justice Conner of this court in the case of Hand v. Errington, 233 S. W. 567. Appellee also insists that there was no resulting trust in the land in controversy in favor of the plaintiffs, because there was no fiduciary relationship existing between them, citing in support of that contention Dickerson v. Abernathy, 1 Posey, Unrep. Cas. p. 107. It is insisted further that there was no constructive trust because there was no proof of fraudulent intent upon the part of the father of the plaintiffs in the sale of the land to the defendant Harris, or on the part of Harris in his sale to Adams, and in support of that contention the following authorities are cited: Block, Oppenheimer & Co. v. Sweeney & Coombs, 63 Tex. 419; Beach v. Dyer, 93 Ill. 295; Ussery v. Ussery, 113 Ark. 36, 166 S. W. 946; 39 Cyc. pp. 170, 171.

It cannot be denied that the equitable title of the appellants in the land was wrongfully converted and the title thereto was lost to them through no fault on their part. Such conversion was a fraud in law, whether intended or not. H. C. Alexander, as the holder of appellants' unrecorded equitable title through the legal title to all interest in the property, was the constructive trustee for appellants, and as such trustee he was liable to appellants for a conversion of that interest. That such is true we deem to be conclusively settled by the decision of the Commission of Appeals, in the case of Hand v. Errington, 242 S. W. 722. In that decision the following is a part of a quotation made and cited with approval from 3 Pomeroy's Eq. Juris. vol. 3, p. 2397, par. 1051:

"A constructive trust arises whenever another's property has been wrongfully appropriated and converted into a different form. * * * It is not essential for the application of this doctrine that an actual trust or fiduciary relation should exist between the original wrongdoer and the beneficial owner. Whenever one person has wrongfully taken the property of another, and converted it into a new form, or transferred...