Couch v. Sparger
| Decision Date | 02 May 1923 |
| Docket Number | (No. 6942.) |
| Citation | 252 S.W. 817 |
| Parties | COUCH v. SPARGER et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Erath County; J. B. Keith, Judge.
Action by G. W. Couch against T. P. Sparger and others. From a judgment for plaintiff for less than he asked, plaintiff appeals. Affirmed.
Estes, Payne, Morris & Pressly, of Fort Worth, for appellant.
W. J. Oxford, of Stephenville, for appellees.
G. W. Couch, appellant, sued T. P. Sparger, J. W. Sparger, W. H. Sparger, Eula Bailey and husband, C. W. Bailey, Fleet Galloway and husband, M. E. Galloway, and S. C. Couch in trespass to try title to recover 126 acres of land out of the R. C. Smith survey in Erath county and 10 acres of the M. V. Robinson survey in Erath county, and against T. P. Sparger and J. W. Sparger for certain live stock, and for $10,000 in money.
The ground of recovery as alleged was that Elizabeth Couch Sparger and Thomas Sparger during their lives held certain personal property and the real estate described in the petition in trust for appellant since the death of his father, which occurred in Georgia in 1866. That John Couch was the first husband of his mother, Elizabeth Couch Sparger, and at his death died seized and possessed of 160 acres of land in Walker county, Ga., which descended to him and to his brother, S. C. Couch, and sister, Mary Couch. After the death of his father, John Couch, his mother, Elizabeth Couch, married Thomas Sparger. That they sold the Georgia property belonging to John Couch, and the proceeds were by them invested in the lands in controversy herein, and held said property as trustee for his brother, S. C. Couch, and himself. That his sister, Mary Couch, never married, and having died without issue was at the time of the filing of this suit entitled to five-twelfths undivided interest in the two tracts, which interest descended to appellant.
By an agreement between appellant and his mother, Elizabeth Couch Sparger, and Thomas Sparger, the proceeds of the Georgia lands were invested in lands in Tarrant county, Tex., the legal title being taken in the name of Thomas Sparger with the understanding and agreement at the death of Elizabeth and Thomas Sparger he should have the Tarrant county land. Thereafter the Tarrant county land was sold by Thomas and Elizabeth Sparger and the proceeds invested in the Erath county lands under the same trust agreement. Eula and C. W. Bailey, W. H. Sparger, S. C. Couch, Fleet and M. E. Galloway, each filed disclaimers, and were thereby eliminated from the suit.
T. P. Sparger and J. W. Sparger, appellees, filed general demurrer and general denial plea of not guilty, and pleas of two, three, five, and ten years' statute of limitation against plaintiff's claims to ingraft an express parol trust on the land. Further pleaded estoppel on the ground that the land sued for was the community property of their parents, Elizabeth Couch Sparger and Thomas Sparger, and they inherited each 12/70 undivided interest in said land, and since their death had purchased the 12/70 interest inherited by Fleet Galloway, Eula Bailey, and W. H. Sparger, each respectively, and 5/70 interest inherited by S. C. Couch, making 41/70 they claim by purchase, which together with that they together inherited from their parents makes a total of 65/70. They admitted appellant was entitled to 5/70 undivided interest which he acquired by inheritance from his mother, Elizabeth Couch Sparger.
The case was tried by the court without a jury, and judgment was rendered in favor of appellant for 5/70, or a 1/14, undivided interest in the land in controversy and for appellees, T. P. and J. W. Sparger, for the other 65/70, or 13/14, thereof.
The court made lengthy findings covering every phase of the case fully supported by the testimony.
The first question to be determined is the interest acquired by appellant in the estate of his father and mother in respect to the 160 acres of the Georgia land owned by his father and mother. His father died in Georgia in 1863 leaving his mother surviving and the three children, himself, brother, and sister. Up to the death of his father, his mother and the children were residing thereupon having acquired the property by their joint efforts. If the title to the land were taken in the name of both husband and wife, the wife would own one-half undivided interest in the land. If taken in the name of the husband, John Couch, alone, under the laws of Georgia the title descended to his children and his wife, share and share alike; the wife taking only a child's part. This was shown to be the law in Georgia in such cases.
In this case, as appellant was asserting ownership by inheritance from the father, to the exclusion of the wife, the burden of proof was on him to show that title to the Georgia land was not taken in the name of the husband and wife, but was taken in the name of the husband alone. The appellant having failed to make such proof, we must overrule appellant's contention and hold the interest taken by the children from the husband and father by descent would only be one-half and that the remaining one-half belonged to the surviving wife, mother of the children.
After the marriage of Elizabeth Couch with Thomas Sparger, her second husband, in 1879, she claiming a one-half interest, for a consideration of $800, of which $600 was in cash, the balance to be paid at a later date, they sold the land. Of this money $500 was immediately invested in 130 acres of land in Tarrant county, and the legal title to the land was taken in the name of her second husband, Thomas Sparger. In 1883 he and his wife sold the Tarrant county land for a consideration of $700, taking one horse and the balance in cash, and in 1884 purchased 140 acres of the R. C. Smith survey in Erath county, for a consideration of $800, of which $300 was cash, and two vendor's lien notes of Thomas Sparger alone for $250 each were executed and delivered and the legal title was taken in his name.
After a period of more than 40 years after the purchase of the Tarrant county land, and after some 36 years after the purchase of the Erath county land, and after the death of both the surviving wife of the first husband and the death of the second husband in whose name was the legal title, appellant now seeks to establish a trust in his behalf for the amount of his money that he claims was invested in each of said purchases. To do this he was required to do so by very clear and satisfactory evidence. On this issue the trial court found against him, and we do not feel from the record before us that the trial court erred in refusing to establish such a trust. There being an issue of fact, as to whether an express parol trust had been ingrafted upon the legal title to the land, and the issue pro and con submitted, the court found against such trust, and his finding that the facts and circumstances in evidence failed to establish it by clear and satisfactory evidence must be sustained, for that was a function of the trial court, and no appellate court would be justified by denying to the trial court the duty imposed specially upon it.
We think the facts justify the conclusion that appellant with the full facts before him in accepting in full settlement a one-fourteenth interest of the bonus money as his share due under the oil and gas lease, and permitting, without question, the act of the attorney in fact to pay the sum of $1,000 of said bonus having full knowledge of all the facts, constituted a waiver of any claim to a greater right and interest than a one undivided one-fourteenth, that he inherited from his mother, and thereby further estopped from claiming an express parol trust in the whole in his favor.
When Thomas and Elizabeth Sparger were permitted, at least without objection, to convey in 1890 two of the separate tracts of the Erath county land with their knowledge without protest, showed a clear repudiation of the alleged parol trust, which act had the legal effect to put in motion the statute of limitations of 10 years before filing this suit that barred appellant's claim, and the trial court did not err in so finding and holding.
The Georgia laws in respect to acquiring estates between husband and wife to descent and distribution were proven up by a Georgia lawyer, Mr. J. N. Johnson, who testified, among other things:
"Any landed interest that the husband and wife acquired during their marriage would have had to be acquired...
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