Carl v. Settegast

• Decision Date: 22 January 1922
• Docket Number: (No. 220-3350.)
• Citation: 237 S.W. 238
• Court: Texas Supreme Court
• Parties: CARL et al. v. SETTEGAST et al.<SMALL><SUP>*</SUP></SMALL>

Page 238

237 S.W. 238

CARL et al. v. SETTEGAST et al.^*

(No. 220-3350.)

Commission of Appeals of Texas, Section B.

January 22, 1922.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by Adelina Carl and another against J. J. Settegast, Jr., and others. Judgment for defendants affirmed by the Court of Civil Appeals (211 S. W. 506), and plaintiffs bring error. Judgments of both courts reversed and remanded for new trial.

Geo. S. King and Jno. C. Williams, both of Houston, for plaintiffs in error.

C. R. Wharton, J. W. Lockett, and Baker, Botts, Parker & Garwood, all of Houston, for defendants in error.

McCLENDON, P. J.

The purpose of this suit was to ingraft a secret parol trust upon a deed absolute in terms, by which on May 18, 1882, Adelina Carl (who was then Adelina Binz) conveyed to her father Jacob Binz her interest in certain real estate therein specified, and all her interest in the community estate of her father and her mother, Anna Binz. The suit was brought by Adelina Carl, joined by her husband, F. Carl, against Mrs. Melina Settegast and husband, J. J. Settegast, and Arthur J. Binz. Mrs. Settegast and Arthur J. Binz were children of Jacob Binz by a subsequent marriage and devisees under his will. The property sought to be affected with the trust was described in plaintiff's petition, and consisted of both personalty and realty. Plaintiff sued for title to and possession of one-fourth undivided interest in the property, and for partition. Stated in general terms, the contention upon which plaintiff's suit was predicated was that when the deed of settlement of May 18, 1882, was executed, the understanding between her and her father was that her interest in her mother's community estate was thereby conveyed to her father, not absolutely, but in trust for her, with the understanding that her father was to control and manage it during his life, and at his death she was to receive her interest, with the accumulations. The cause was tried before a jury upon special issues, and upon their answers judgment was rendered for defendants. This judgment was affirmed by the Court of Civil Appeals, 211 S. W. 506.

Forty-two special issues were submitted to the jury, not all of which, however, were answered. The Court of Civil Appeals rests its affirmance of the trial court's judgment upon two independent jury findings: First, the finding in answer to special issues 1 and 2 to the effect that the alleged trust agreement was never made; and, second, the finding in answer to special issue 11 to the effect that, if the agreement had been made, the general course of dealing with the property by Jacob Binz for a period of more than four years prior to his death showed a repudiation of such trust, and therefore the rights of plaintiff, if they ever existed, were barred by the four-year statute of limitations (R. S. art. 5690). The correctness of these holdings presents two questions of leading importance for our determination: First, whether defendants' special charge No. 4, which the court gave, was erroneous in the burden of proof it required of plaintiff in establishing the parol trust; and, if erroneous, second, whether the trial court's judgment must be affirmed, regardless of such error, upon the holding that the action was barred under the jury's answer to special issue 11.

The evidence was sufficient to take the case to a jury upon the issue of the creation of the trust; and since we are concerned here only with questions of law, and must view the evidence, for the purpose of determining those questions, in the strongest light in favor of the plaintiff the losing party, we will give only such brief outline of the case as we deem necessary to make clear the questions which we are called upon to decide. A more detailed statement of the evidence will be found in the opinion of the Court of Civil Appeals.

Anna Binz, the mother of plaintiff, died in 1870, intestate. She left surviving her as the only heirs at law of her community estate two children, the plaintiff and Adolph Ulrich, a son by a former marriage. Anna and Jacob Binz had lived together as man and wife in Houston, Tex., since about 1861. At the time of her death, Jacob Bintz had accumulated considerable property, all of which was presumably community, and most of which was real estate, all purchased for cash. In 1873 he married again, and by this marriage there were two children, the defendants Mrs. Melina Settegast and Arthur J. Binz. The second Mrs. Binz died in 1901. From 1870 to 1882 Jacob Binz managed and controlled the community property of himself and wife, Anna Binz, handling it practically as his own property. On May 18, 1882, plaintiff's twenty-second birthday, she executed to her father a deed absolute in form, conveying "all my right, title and interest to which I may be entitled as heir of my deceased mother" in certain specified real estate, which constituted all the real property standing in her father's name. The recited consideration for this deed was:

"Four thousand dollars to me in hand paid by Jacob Binz, and the further consideration of life insurance policy No. 60421, in the New York Life Insurance Company for ten thousand dollars."

The habendum clause concluded as follows:

"This deed being intended as and is a full release and conveyance to said Jacob Binz of all my right, title and interest and claim as heir of my deceased mother, Anna Binz, in the community property or estate of my deceased mother in full satisfaction, discharge and release of any and all claims and demands that I may or can have against said Jacob Binz by, through or on account of said community interest, or as heir of my deceased mother."

On August 21st of the same year plaintiff married August Moser, who died about 16 years later. On October 10, 1902, she married F. Carl, with whom she has since lived. After this deed of settlement was made, and up to the time of his death, Jacob Binz continued to manage the property conveyed therein as his own, assessing it for taxes, making sales of real estate, purchasing other real estate, loaning money, etc. He died March 23, 1913, at the age of 85 years. His estate was appraised at $873,213.78.

The evidence by which plaintiff sought to establish a parol trust was her own testimony as to the agreement between her and her father when the deed of settlement was executed, corroborated by several witnesses, who testified to various subsequent declarations of trust by Jacob Binz in their hearing. The evidence of plaintiff was sufficient to warrant a finding that the trust agreement was made, and that under it Jacob Binz had the absolute management and control of plaintiff's community interest in her mother's estate during his lifetime, including the power of sale.

The first special issue submitted to the jury called for a finding upon the question whether the trust agreement was made; the court having already instructed the jury in its main charge that the deed was presumed to be an absolute conveyance. Defendants' special charge No. 4 reads as follows:

"The jury is instructed that before the plaintiff can recover herein she must establish clearly and by a preponderance of the evidence the alleged secret parol trust which she now seeks to ingraft upon the deed made by her to her father May 18, 1882, and the burden of proof is upon her to show by a preponderance of the evidence, and to establish clearly to the satisfaction of the jury, that the deed above referred to was given for some purpose other than the purpose expressed upon its face and by its language. And unless the jury finds from a preponderance of the evidence that the proof offered meets these legal requirements, question No. 1 should be answered in the negative."

The leading inquiry presented for our consideration is whether it was error to charge the jury, in effect, that to overcome the presumption that the deed of settlement was not absolute, as upon its face it appeared to be, but was affected with a parol secret trust in favor of plaintiff, the latter must establish such trust clearly and to the satisfaction of the jury. The character of charge to be given to the jury in a case of this character has been considered by the Supreme Court in a number of cases extending back to the earliest times; and it may be regarded as singular that the question now before us should, at this time, present any serious ground of controversy. The rule that to ingraft a parol trust upon an instrument absolute on its face the evidence must be clear and satisfactory arose at a time when suits of this nature were cognizable only in courts of chancery, where all matters of fact, as well as the law, were tried by the chancellor, and where questions of facts addressed themselves to the conscience of the chancellor. The aid of a jury in such cases was discretionary, and their findings, when called for such aid, were not binding absolutely upon the chancellor, but merely persuasive and advisory, and subject to be disregarded at his discretion. In so far as the rules of evidence thus announced by the chancery courts are rules of law, they should be regarded as binding upon our courts; but, in so far as these rules merely address themselves to the conscience of the chancellor in exercising his province to pass upon the facts or weight of the evidence, they have no place in our jurisprudence, under which, whether the case be one cognizable alone in equity or one at law, a jury trial is given as a matter of right, and the province of the jury where the evidence is sufficient to have the issues submitted to them is absolute in determining the facts, subject only to review by the trial court and Court of Civil Appeals. In passing upon the sufficiency of the evidence as a matter of law it is the province, not only of the trial court and Court of Civil Appeals, but also of the Supreme Court, to determine whether the evidence meets the requirements under...