Hall v. Rawls

• Decision Date: 21 June 1945
• Docket Number: No. 4285.,4285.
• Citation: 188 S.W.2d 807
• Parties: HALL et al. v. RAWLS.
• Court: Texas Court of Appeals

188 S.W.2d 807

HALL et al. v. RAWLS.

No. 4285.

Court of Civil Appeals of Texas. Beaumont.

June 21, 1945.

Rehearing Denied July 11, 1945.

Appeal from District Court, Liberty County; Clyde Smith, Judge.

Suit by Mrs. R. T. Rawls against H. D. Hall and others to recover title to and possession of certain realty and for other relief. From a judgment for plaintiff, the defendants appeal.

Affirmed.

See also 141 Tex. 235, 171 S.W.2d 324.

E. B. Pickett, Jr., of Liberty, for appellants.

W. J. Kronzer, Fred W. Moore, and Blades, Chiles, Moore & Kennerly, all of Houston, and Horace D. Grogan, of Conroe, for appellee.

WALKER, Justice.

Appellee brought this action on August 7, 1944, as plaintiff, to recover title to and possession of Lot 9, Block 5, of the Edwards Subdivision of the Town of Cleveland, in Liberty County, Texas, and for other relief. The trial court entered judgment in behalf of plaintiff for title and possession, as prayed for, and for $480 as damages, the rental value of the property during the two years next preceding commencement of this suit. All defendants have appealed.

The matters assigned as error require a statement of plaintiff's cause of action, as pleaded and as proved, and of the particular defense thereto which is before us.

The petition commences with the formal allegations of trespass to try title, but plaintiff also specially plead the facts on which she based her prayer for relief. In substance, she alleged an express trust, which had expired, and also alleged such fraud on the part of defendants from the inception of the trust agreement, by way of procuring such agreement to be made, and otherwise, as indicates an intention to charge a constructive trust upon the title within the doctrine of Hall v. Miller, Tex. Civ.App., 147 S.W.2d 266, and similar decisions. We omit the allegations of fraud because they are not material. There was some supplemental pleading but it is also immaterial. Otherwise plaintiff alleged that about August 19, 1935, she executed and delivered to the defendant Wisdom a general warranty deed purporting to convey to him the property referred to above; that she was then the owner of said property and desired to erect a house thereon, and this conveyance was made under and by virtue of an agreement between plaintiff and said defendant (the pleading does not show whether this agreement was written or in parol) whereby said defendant promised and agreed to erect a house on the property as desired by the plaintiff, in consideration of the use of said property, thus improved, until December 29, 1938, and further promised and agreed to reconvey said property, as improved but unencumbered, to plaintiff on that date; that the deed of August 19, 1935, was not intended to convey to said defendant the absolute title to said land, but was only intended to vest him, in substance, with such title as would enable him to procure a loan and finance the erection of the house, and said deed was so made and delivered, for that purpose, at his request and on his representations that same was necessary to the performance of his agreement to erect the house, and that such title as he took under the deed of August 19, 1935, he took in trust for the purpose stated. It was shown that Wisdom gave plaintiff his note for $1,150, which was not to be paid but was to be surrendered on Wisdom's reconveyance, but these allegations need not be gone into here. Plaintiff alleged that Wisdom erected the house; and if she alleged the creation of a lien to secure payment of the cost of the house, she also alleged a payment of the debt secured thereby. Plaintiff also alleged that said defendant had the use of the property, as agreed, until about April 27, 1938, but that about said date, in violation of his agreement, he and his wife conveyed the property to the defendant Hall, who gave in part payment his note for $900, secured by Vendor's lien on the property; that Hall took this conveyance with notice of the trust, or else with knowledge of such matters as charged him with notice of said trust, and that such title as was thereby conveyed to the defendant Hall was taken and is held by him in trust for the plaintiff. She effectively alleged a repudiation of the trust by Hall and the assertion by him of title in his own behalf.

Plaintiff's prayer for judgment is material, and we quote it in full, as follows: "Wherefore Plaintiff prays that Defendants be duly cited to appear and answer herein, and that upon a hearing hereof she have judgment against the defendants, each and all of them, for the title and possession of said real property first above described, free and clear of all claims of every nature by Defendants; that said deed from Wisdom and wife to Hall and any and all other instruments or documents executed by Hall attempting to encumber or convey said property or any part thereof to be cancelled and held null and void; that Plaintiff recover damages of and from said Defendants, jointly and severally, in the sum of $7,000.00, together with costs of suit, and that Plaintiff be granted such other and further relief, both special and general, in law and in equity, to which she may be justly entitled in view of the premises."

Defendants pleaded various matters in defense, but the merits of this appeal rest upon only one, namely, the four year statute of limitations, Art. 5529, R.S.1925, which defendants presented to the trial court by exception to the petition and also by motion for instructed verdict.

Creation of an express trust, substantially as alleged by plaintiff, and the expiration thereof prior to the commencement of this suit were established, either by the findings of the jury or by the evidence as a matter of law. Plaintiff did not submit her allegations of fraud to the jury; the evidence does not establish such allegations as a matter of law, and the only fraud before us on the facts consists in such fraud as is evidenced by Wisdom's violation of his promise to reconvey, and by Hall's assertion of title under his deed from Wisdom, knowing, as the jury found, when he took it that plaintiff claimed to own the land. We have not considered what relief to plaintiff such fraud would support. The facts respecting an express trust, established by the verdict and the evidence as stated, are these: Plaintiff owned the property in question and desired to erect a house upon it. In order to get the house erected, she made a parol agreement with defendant Wisdom, on or about August 19, 1935, which is hereafter set out, and it is sufficiently clear that under and by virtue of said agreement she executed and delivered to said defendant a general warranty deed, dated August 19, 1935, and filed for record the next day, conveying to said defendant the property in question. This deed recited a consideration of $750 paid. This recital was formal; nothing was in fact paid; nothing was intended to be paid, and it is abundantly clear from the record that nothing has yet been paid to the plaintiff for her property. At the same time and as a part of the same transaction, Wisdom executed and delivered to plaintiff his promissory note for $1150, also dated August 19, 1935, due and payable three years, four months and ten days after date. Computation shows that the due date fell on December 29, 1938. This note was not intended to be paid and has not been paid, in whole or in part. It was intended as, and constituted, security to plaintiff for Wisdom's performance of his agreement, and was formally tendered to defendants on the trial below.

Under the agreement referred to, the defendant Wisdom promised to erect the house on the property, as desired by plaintiff, at his own cost, and such of the terms of said agreement as were in dispute were submitted to the jury. In answer to Issue 1, the jury found in favor of plaintiff's version, namely, that the defendant Wisdom agreed with plaintiff at the time and prior to the execution and delivery by plaintiff to said defendant of the deed dated August 19, 1935, that he would accept the use and enjoyment of the premises in question to December 29, 1938, as reimbursement to him for the cost of the improvements placed thereon and would on or before December 29, 1938, reconvey the property to plaintiff, she only to surrender to him at the time of said reconveyance his note for $1150 given to plaintiff at the time of the conveyance of August 19, 1935. In response to Issue 5, the jury found that at the time plaintiff deeded the property to Wisdom, these parties did not mutually agree that said defendant was to reconvey the property to plaintiff when she had reimbursed him for the cost incurred by him in improving the property, plus $65 for his services, thereby finding against the defendants' version of the agreement.

Shortly after this parol agreement was made, Wisdom procured one Lindley to erect the house on the property. The contract for construction of the house was reduced to writing, dated September 17, 1935. This contract (to which only Wisdom and wife, and Lindley, were parties) formally required Wisdom and wife to pay the cost of the house, amounting to $528.91, in monthly installments aggregating $14.69 each, beginning October 15, 1935, and created a lien on said property to secure the payment of this debt. Computation shows that the last installment would have fallen due on October 15, 1938. Lindley proceeded with the construction of the house, and completed it during October 1935, apparently about October 10th. Wisdom immediately rented the property and kept it rented continuously for about a year and a half, the rentals never falling below $15 per month; and at the end of this period he installed a business of his own in the house and operated this business on the property until shortly before his conveyance to defendant Hall. Wisdom also made certain improvements on his own account, but made no effort in this suit to recover same or the value...