Hardin v. Cotton, 6069
| Decision Date | 21 February 1957 |
| Docket Number | No. 6069,6069 |
| Citation | 300 S.W.2d 719 |
| Parties | Mary Jane HARDIN et al., Appellants, v. Ruby Wheatley COTTON et al., Appellees. |
| Court | Texas Court of Appeals |
Sam G. Croom, Houston, Robert F. Atkins, Coldsprings, for appellants.
Jeff Cochran, John T. Buckley, Cleveland, for appellees.
This is an action in trespass to try title to 252 acres of land situated in the John Stewart League in San Jacinto County, Texas. This suit was brought by Ruby Wheatley Cotton and Elizabeth Wheatley Dailey, joined by her husband, Otis Dailey, children of Dennis S. Wheatley, against Mary Jane Hardin and other heirs at law of Mack and Matilda Wheatley, intestates, who were the parents of Dennis S. Wheatley. The trial began on the 22nd day of February, 1956, but the record fails to disclose the dates of service of citation on the defendants.
The case was tried before the court and a jury. After all parties had rested, the court granted a motion for an instructed verdict filed by the plaintiffs.
Appellants duly excepted to the court's action in granting said instructed verdict, and the judgment rendered thereon, and, thereafter, perfected their appeal to this court, where they have urged the impropriety of the court's action.
It appears that the property was conveyed by John A. Dupree, to Mack Wheatley, by general warranty deed of December 30, 1886, the balance being secured by vendor's lien note for $700 payable in seven annual installments of $100 each, with 10% interest, beginning December 15, 1887.
After the death of Mack Wheatley in 1906, predeceased by his wife, three of his heirs-at-law executed a quitclaim deed, February 6, 1909, to Dennis S. Wheatley, deceased son of Mack Wheatley, who was also the father of the appellees, which unquestionably entitled him to an undivided half interest in the land in dispute. In 1908 Dennis began payments of taxes which continued through the year 1929, and on March 4, 1909, he paid the balance remaining on the note of about $300.
It is appellees' contention that on Christmas Day, 1887, Mack Wheatley told his son, Dennis, that he could have his equitable interest in the land in question if he would pay the remaining notes; that shortly thereafter, Dennis accepted such offer and that by reason of subsequent events the legal title reposed in trust for Dennis Wheatley.
The following summary of the evidence is necessary in determining whether there was, in connection with the alleged trust, an issue to be determined by the jury.
Preston Wheatley, one of Mack Wheatley's sons, and the only living witness professing knowledge of the alleged transaction between his father and Dennis Wheatley, stated, on the trial, that on December 25, 1887 his father, Mack Wheatley, called his four sons together and stated, That it would belong to the one that paid for it; that Dennis finally took it; that Dennis, although he was living out of the county took possession of the land in 1889; that he placed tenants on it; that Mack and Dennis managed the place for several years, 'but brother was * * * in fact, in fact they did the hiring and tending the place, of the hands on the place'; that all the boys took charge to help manage it; that it was all fenced; that only 45 or 50 acres was ever fenced. Asked if Mack Wheatley would take charge when Dennis was in Moscow in '89, or get some of the other children to help him, he replied, 'he wasn't there at the time, wouldn't know anything about what Mack did, and couldn't possibly say what Dennis did while he, Preston, was gone out of the county and state so often.
In rebuttal of the foregoing testimony, counsel for appellants introduced portions of the same witnesses' deposition taken prior to trial, of which the following is a substantial summary:
That during the holidays Mack Wheatley called his children together and told them that he was not able to proceed to work and that some of them would have to take over the payments of the land, on which he was two behind; that he offered it to him, the witness; offered him 50 acres of land if he would do it; that he refused; that Dennis finally got a school teaching job at Camilla in 1888, paying $50 per month, and that was why he took it; that he, the witness, put the first tenant on the land in 1887, and that he put him on there for Mack Wheatley; that he was gone, off and on, until 1933, and that during his absence Dennis looked after his father's business, trying to help him; that Dennis built no fences after 1888, but did repair them, together with two houses on the place.
Appellants contend, citing Lynch Oil Co. v. Shepard, Tex.Civ.App., 242 S.W.2d 217 (E. ref.) that where there is conflict in testimony given by a witness in a deposition and in the trial, it is for the jury alone to determine which is correct; particularly where the witness, as claimed by appellants, is one of interest.
Reserving for later discussion the alleged interest of the witness, it is noted, however, that there arises, from the testimony on the deposition, the compelling inference that Dennis Wheatley did not presume to engage in a binding contract for the land with his father, but, to the contrary, that he was endeavoring to aid his father and family. But, should this witness' testimony on the trial be considered as only an elaboration of that in his deposition, could it then be held to be such 'clear, unequivocal testimony' as is held to be necessary in order to engraft a parol trust upon a deed absolute on its face? We think not. 'In order to engraft a parol trust on an absolute, unconditional deed the evidence must be clear, satisfactory, and explicit.' So, conversely of the rule by which we are bound in construing the propriety of instructed verdicts, it appears doubtful that this testimony, standing alone, would support a jury finding, and it being resolved that the foregoing testimony of witness, Preston Wheatley, is of such precatory nature as to, standing alone, be insufficient to establish the trust, the paramount question seems to be whether such testimony, together with that hereinafter mentioned, is so compelling that reasonable minds would not be justified in concluding otherwise. Johnson v. Bingham, Tex.Civ.App., 251 S.W. 529; Mead v. Randolph, 8 Tex. 191; Blumenthal v. Nussbaum, Tex.Civ.App., 195 S.W. 275.
Appellees introduced the original note executed by Mack Wheatley to J. A. Dupree, his vendor, in the sum of $700, as of December 30, 1887, on the back of which was noted, in longhand, that twelve payments of sums ranging from $11 to $100 were applied to the note on various dates from January, 1888, to, and including, March, 1901. To these notations of payment went appellants' objection that the same were hearsay. To such objection the court replied, 'It is a question of fact-probative rather than the admissibility of it.' It may well be added that it was indeed a question of fact-the fact of who made such payments. Massey v. Lewis, Tex.Civ.App., 281 S.W.2d 471. Only four of these payments were noted to have been made by Dennis Wheatley, and these were in the years of 1893 and 1894, two bearing the purported signature of J. A. Dupree, and the other being unsigned, as were seven of the...
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