Barnett v. Houston

• Decision Date: 19 January 1898
• Citation: 44 S.W. 689
• Court: Texas Court of Appeals
• Parties: BARNETT v. HOUSTON.<SMALL><SUP>1</SUP></SMALL>

44 S.W. 689

BARNETT v. HOUSTON.¹

Court of Civil Appeals of Texas.

January 19, 1898.

Appeal from district court, Gonzales county; M. Kennon, Judge.

Action by H. G. Barnett against W. B. Houston. Judgment for defendant, and plaintiff appeals. Affirmed.

This action was by appellant to recover of appellee an undivided half of a 320-acre survey. The following uncontradicted facts appear: Eliza Barnett owned the land in 1868, and in the spring of that year executed a deed, in usual form, conveying the tract to James A. and W. L. Barnett, her sons, reciting the consideration of $320; no such consideration, however, existing. Thereupon W. L. Barnett executed to James F. Miller and A. J. McKean, as trustees, a deed to said tract and another tract belonging to W. L. Barnett individually, and a few wagons, accounts, etc., for the expressed purpose of sale by them to pay off certain enumerated debts, some of which appear therein as individual debts of W. L. Barnett, and some as debts of J. A. and W. L. Barnett, and among them was specified "claims in hands of Parker & Miller against W. L. and J. A. Barnett"; and it provided, in substance, that, if any surplus remained after executing the trust, it should be paid to W. L. Barnett. In this instrument W. L. Barnett alone appears as the grantor, but it was signed by James A. Barnett as well as by W. L. Barnett. It also appears that in 1882 the trustees had made no disposition of any of said lands, but all the debts mentioned in the deed of trust had been settled, except the claims in the hands of Parker & Miller. In October, 1882, Miller, one of the trustees, conveyed the lands to T. J. Ponton for $600, and applied the proceeds, less expenses, to said claims. His co-trustee had died soon after the execution of the deed of trust, and J. A. Barnett had died in 1877. In October, 1882, W. L. Barnett also executed a deed to the 320-acre tract in question to Ponton. The latter, immediately upon his purchase, went into possession of the survey, and this possession has continued. Defendant, Houston, holds under Ponton's administrator. After J. A. Barnett signed the deed of trust, he asserted no claim to the land. Defendant pleaded by general demurrer and general issue, the several statutes of limitation, and improvements, and by special plea averred, in substance, that the deed from Mrs. Barnett to J. A. and W. L. Barnett, absolute in form, and reciting a money consideration paid by them, was not the real transaction, but it was executed for a certain purpose, and upon a certain trust or use; giving in detail the transaction, not necessary to reproduce, but sufficiently indicated by the following clause of the answer: "Defendant alleges that under the circumstances as herein just set out, and for the purpose of assisting said J. A. Barnett and said W. L. Barnett in settling their said individual and partnership indebtedness, and for the purpose of enabling them to secure and postpone the payment of said indebtedness, and prevent the sacrifice of their said property, and to assist them in the payment and satisfaction of said indebtedness, the greater portion of which had been incurred for her and in her behalf, and in order that the said J. A. Barnett might, as well as his brother, W. L., have property in his name, not otherwise incumbered, with which to secure and postpone the payment of said indebtedness, the said Mrs. Eliza Barnett, if she ever did execute said deed, acting by and with the full knowledge and consent of the said J. A. Barnett and the said W. L. Barnett, made and executed the said deed, conveying the land in controversy in this suit to said J. A. and W. L. Barnett, for no other or further consideration than herein above expressed, with the full understanding and agreement then and there by and between herself and the said J. A. Barnett and W. L. Barnett that no absolute title was thereby conveyed, or intended to be conveyed, to said J. A. Barnett in said land, but with the further full agreement and understanding by and between the said parties to said deed that, for the purpose of securing the indebtedness hereinbefore set out and described, the said J. A. Barnett and said W. L. Barnett, for no other or further consideration than herein above expressed, with the full understanding and agreement then and there by and between herself and the said J. A. Barnett and W. L. Barnett that no absolute title was thereby conveyed, or intended to be conveyed, to said J. A. Barnett in said land, but with the further full agreement and understanding by and between the said parties to said deed that, for the purpose of securing the indebtedness hereinbefore set out and described, the said J. A. Barnett and said W. L. Barnett would execute a mortgage or trust deed for the benefit of their said creditors, and for the purpose of securing them in the payment of said claims hereinbefore mentioned, and for the purpose of postponing the payment of said indebtedness, and to prevent the sacrifice of the property of the said J. A. Barnett and W. L. Barnett, and especially the property above mentioned, belonging to the said W. L. Barnett, and with the further full understanding and agreement then and there by and between the parties to said deed that in case the said indebtedness could be paid off, or otherwise satisfactorily settled, without the sacrifice of said property, that then, in that event, said 320-acre tract of land should revert to, and become the property of, the said W. L. Barnett, and vested in fee simple in him, and that thereupon all right, title, claim, or interest of the said J. A. Barnett therein should lapse and cease to exist." To this answer plaintiff replied by demurrer, and by setting up minority, limitations, and stale demand. The existence of such oral trust as affecting such deed was conflicting. There is no conflict in the evidence as to the fact that J. A. Barnett and W. L. Barnett had been partners in the stock business; that, at the time Eliza Barnett deeded to them this land, they were in an insolvent condition, owing considerable partnership as well as individual indebtedness; and there was evidence going to show that the partnership had a firm name, which corresponded with the name of the grantee in the deed from Eliza Barnett. The verdict was in favor of defendant.

T. M. Harwood and Thos. McNeal, for appellant. E. Lewis and Atkinson & Abernethy, for appellee.

JAMES, C. J. (after stating the facts).

The case was submitted upon two theories, — one being the existence of the parol trust, the court charging in this connection that if the same was proven, and the land was sold for the purpose of paying the debts contemplated by it, the verdict should be for the defendant; the other theory being that the land was conveyed by W. L. Barnett to the trustees to pay partnership debts of James A. and W. L. Barnett, with the consent of James A. Barnett; and in this connection the charge was to find for defendant if the jury found such facts, and the further fact that the land was sold under the trust deed to pay partnership debts. We will first consider the case in reference to the first of these theories. That a deed absolute upon its face may be shown to have been intended to be held by the grantee in subordination to a use or trust, and so enforced by a court of equity, is not disputed. Cook v. Cook, 77 Tex. 85, 13 S. W. 847. If Eliza Barnett had provided that, after the uses to which the deed was to be applied, the land, or what remained of it, should be returned to her, there is no doubt that she could have enforced the return of it, or the remainder of it; and we can see no reason why she could not have provided that the residue should go to some one else. The evidence was sufficient to authorize a finding in favor of the existence of the parol trust alleged. If such trust existed, its effect was, as between W. L. Barnett and J. A. Barnett,...