Brown v. O'Meara

• Citation: 206 S.W.2d 122
• Decision Date: 23 October 1947
• Docket Number: No. 11878.,11878.
• Parties: BROWN et al. v. O'MEARA et al.
• Court: Court of Appeals of Texas

206 S.W.2d 122

BROWN et al. v. O'MEARA et al.

No. 11878.

Court of Civil Appeals of Texas. Galveston.

October 23, 1947.

Rehearing Denied December 4, 1947.

Appeal from District Court, Harris County; Wilmer B. Hunt, Judge.

Suit by Mrs. L. Ruth Maness-O'Meara and others against Myrtie L. Brown and others, in trespass to try title, wherein Perry V. Cook intervened in the suit as plaintiff. From adverse judgment, defendants appeal.

Affirmed.

John C. Townes and Lewis Fogle, both of Houston, for appellants.

Dyess & Dyess, of Houston, for appellees.

GRAVES, Justice.

This appeal is the second in this cause, the first one having been reported under the style of Brown et al. v. O'Meara et al., in Tex.Civ.App., 193 S.W.2d, at pages 715 to 722, inclusive, wherein, on the record then before it, this Court remanded the cause for re-trial; the Supreme Court thereafter refused a writ of error, pursuant to a holding that no reversible error had been shown.

Such prior litigation has greatly reduced the issues of law, which remain to be determined from the present appeal, the record in which reflects the proceedings had on the new trial formerly so ordered. Since the parties and the subject matter have remained generally the same, no further resumé as such of the facts, nor of prior procedures need be made, the report of the former appeal being herein so referred to and made part hereof. Moreover, none of this Court's holdings on the former record having contained reversible error, they will now all be followed as the law of the case, on the same facts, or the legal equivalent thereof.

The trial court this time submitted the cause on 20 special issues, which it deemed to comprehend all the material questions of fact raised by the pleadings and the evidence; on the coming in of the jury's verdict, in answer thereto, it thereupon—on the appellee's motion therefore—granted them the appealed from judgment on the jury's answers to issues Nos. 1, 3, 4, 5, 6, 7, 8, 11, 14, 15, 16, 18, 19, and 20-14 in all—notwithstanding the verdict upon remaining issues Nos. 2, 9, 10, 12, 13, and 17—6 in all.

The substance of such 14 answers was this: No. 1—The sum of $831.30 paid to the Federal Land Bank was paid by Mrs. Maness out of funds belonging to her children; No. 3—Mrs. Maness did not use the sum of approximately $832 furnished by Mrs. Brown for the purpose of paying the same to the Federal Land Bank; No. 4— Mrs. Brown, in having the property here involved deeded to her by Katy National Farm Loan Association by deed dated March 4, 1936, did so in furtherance of an agreement, express or implied, with Mrs. Maness that such title created by such deed would be held by Mrs. Brown for the use and benefit of the Maness children; No. 5—the Katy National Farm Loan Association in making foreclosure of the property here involved in February, 1936, did so for the purpose and with the intent to assist Mrs. Brown and Mrs. Maness in saving said property from Cook for the Maness children; No. 6—the Katy National Farm Loan Association in conveying to Mrs. M. L. Brown the property here involved by deed dated March 4, 1936, did so for the purpose and with the intent to assist Mrs. Brown and Mrs. Maness in saving said property from Cook for the Maness children; No. 7—Mrs. Maness, in giving to Mrs. Brown quitclaim deed dated February 13, 1936, did not do so in consideration of money theretofore furnished to her by Mrs. Brown; No. 8—In taking a quitclaim deed from Mrs. Maness to Mrs. Brown dated February 13, 1936, Mrs. M. L. Brown did, expressly or impliedly, agree to hold the property involved herein in trust for the use and benefit of the Maness children; No. 11—In taking the deed from the Katy National Farm Loan Association dated March 4, 1936, Mrs. M. L. Brown, expressly or impliedly, agreed to hold the same for the use and benefit of the Maness children; No. 14—In taking the assignment of the Federal Land Bank of a portion of its first mortgage lien indebtedness against the property in controversy herein and dated March 4, 1935, Mrs. M. L. Brown, expressly or impliedly, agreed to hold the same for the use and benefit of the Maness children; No. 15—the two annual installments due by L. F. Maness, to the Federal Land Bank on January 1, 1928, were paid by said Association to the Federal Land Bank in 1928 upon L. F. Maness' giving his note to said Association for the aggregate amount of said two installments, which note is dated January 30, 1928; No. 16—Lewis Fogle did not advance funds for the account of Mrs. M. L. Brown on the land here involved without notice of claims of plaintiffs (appellants) or intervenor (appellee), and without knowledge of facts sufficient to put him upon inquiry, which would have led to his learning of the claims of plaintiffs and intervenor, which claims were asserted in this lawsuit; No. 18—we find Lewis Fogle received on account of the land here involved from rentals of oil leases and sales of easements for rights of way across said land up to this date, $2,450.04; No. 19—the Farm Loan Association stock, which was indorsed and delivered by Mrs. L. Ruth Maness to Mrs. M. L. Brown, on or about February 13, 1936, was the stock of such Association, which had been purchased by Perry V. Cook; No. 20—Perry V. Cook had indorsed such stock gratuituously to L. F. Maness for the accommodation of said Maness.

The remaining five answers to the issues the Court discarded were these: No. 2—in or about the month of November, 1935, Mrs. Maness was furnished approximately $832 by Mrs. Brown for the purpose of paying said money to the Federal Land Bank; No. 9—Mrs. Brown did at one time repudiate such trust; No. 10—Mrs. Maness knew of such repudiation more than four years prior to April 6, 1942, the date this suit was filed; No. 12—Yes, Mrs. Brown had at one time repudiated such trust; No. 13—Mrs. Maness did know of such repudiation more than four years prior to April 6, 1942, the date of which this suit was filed; No. 17—How much money did Lewis Fogel advance to Mrs. M. L. Brown, or pay out for her, on account of the land here involved, up to April 6, 1942? (No answer.)

Judgment was so rendered on the verdict that the Maness children and intervener Cook recover the land, and that one of the Maness children (the minor), and Perry V. Cook, recover of defendant Fogle $554.41, and of Mrs. Brown the Association's stock, and adjudging against defendants attorneys' fees for guardians ad litem, and all costs.

Obviously, if there was evidence sufficient to support the quoted answers of the jury to the 14 issues so found in the appellees' favor, the over-all question the appeal poses is whether or not, under the law, those facts—standing by themselves, irrespective of the other five answers quoted— supported such judgment.

Inveighing here against the judgment so adverse to them below, the appellants, after first asserting that, on the question of whether or not any kind of trust arose this time in favor of the Maness children, there had been no substantial nor material difference between either the pleadings or the evidence on the present trial, and those on the former trial, as discussed by this Court under Syllabus 4 of its opinion on the former appeal (Brown v. O'Meara, Tex. Civ.App., 193 S.W.2d 715, loc. cit. 721), attacked such judgment now at bar, under 19 stated points of error.

The first eight of these, from divers approaches, assert that neither the pleadings nor evidence supported the submission to the jury of the quoted issues, touching any kind of a trust in favor of the Maness children, especially of an implied or resulting one, and that this Court's cited opinion on the former appeal, under a completely analogous record, so declared.

This contention cannot be sustained. In the first place, there were material, if not indeed structural differences between the states of the two records referred to; and, in the second place, this Court did not in its former opinion hold that no trust in favor of the Maness children had or could have arisen—quite the contrary—as thus appears from its express declaration: "In order to sustain the right of the Maness children to recover the title of the land, it is necessary to establish that Mrs. Brown, while holding the lien securing the $831.30 in trust for the Maness children, acquired the deed from the Loan Association in trust for them, so that the lien merged in the title she acquired in trust for...