Craig v. Harless

• Decision Date: 16 October 1903
• Citation: 76 S.W. 594
• Parties: CRAIG et al. v. HARLESS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

76 S.W. 594

CRAIG et al. v. HARLESS.^*

Court of Civil Appeals of Texas.

October 16, 1903.

Error from District Court, Harris County; Wm. H. Wilson, Judge.

Action by B. F. Harless against Estelle J. Brady and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Taliaferro & Wilson, for plaintiffs in error. W. J. Howard, for defendant in error.

GARRETT, C. J.

This action was begun for the recovery of land. It was brought by the defendant in error, B. F. Harless, against Estelle J. Brady, W. F. S. Schelling, and Lucy Sherman Brady, Sidney Sherman Brady, and Mary Henrietta Brady, and L. W. Craig; the said Craig being sued as the guardian of the last three named defendants, who were minors. The plaintiff alleged that he was the owner of the land by virtue of a deed executed by E. P. Turner to George Ramine August 18, 1883; that the defendants, except Schelling, claimed the same by virtue of a deed executed April 3, 1875, by Turner to John T. Brady, who was the husband of Estelle J. Brady, and the father of the said minors. It was alleged that it was not intended by either Turner or Brady that the title should be vested in Brady by the deed from Turner to him, but that it should remain in Turner; that the deed was made for convenience in making sale of the land; that Brady died June 3, 1891, and up to his death always admitted that he held the land as trustee for Turner's benefit. There was a prayer that the deed be canceled and removed as a cloud on his title, and for general relief. Schelling was sued as warrantor of the title to plaintiff. The defendant Schelling answered by a general demurrer, plea of not guilty, and adopted the allegations of the plaintiff's petition. Estelle J. Brady disclaimed. The minor defendants and their guardian, by demurrers and pleas in bar, pleaded the statute of four and ten years' limitation and stale demand to the plaintiff's cause of action. They also pleaded "Not guilty," and a cross-bill for the removal of cloud and recovery of the land. All exceptions to the petition were overruled by the court, and, on trial by the court without a jury, judgment was rendered in favor of the plaintiff.

Briefly stated, the facts were that on April 3, 1875, E. P. Turner executed a deed to John T. Brady which purported to convey to Brady the land in controversy and other lands. This deed was duly recorded August 4, 1875. It was not intended by the parties to the deed that the land should belong to Brady, but that only the legal title should be conveyed to him for the convenience of Turner in making sales and conveyance of the land included in the deed. There was no consideration for the conveyance. Turner was absent a great deal from the city of Houston, where he and Brady resided. They were on intimate terms, and had many transactions with each other concerning both real and personal property; and the deed was made in order that the property might be sold as opportunity might present, and to save costs and expenses in forwarding and executing deeds, and to save delay and facilitate the handling of the property. Brady never claimed any interest in the land. He made several sales of land included in the deed, and in each case accounted to Turner for the proceeds of the sale. Some of the land included in the deed, Turner himself sold. The land was all finally sold by either Brady or Turner. Brady died June 3, 1891. He never made any claim to the property or any interest therein, or sold any of it without accounting to Turner for the proceeds. No possession was ever taken of the land by Brady, nor was it ever taken possession of or inventoried as a part of the property of the estate of Brady or of the plaintiffs in error. There was no reconveyance to Turner by Brady of the property in controversy. Turner conveyed it to George Ramine in 1883, and, as a part of Ramine's estate, it descended to the defendant Schelling, who sold it to the plaintiff.

The first seven assignments of error presented in the brief of the plaintiffs in error raise questions of limitation and stale demand against the plaintiff's cause of action, upon the theory that the plaintiff is not...