Jackson v. Hernandez

• Decision Date: 16 December 1954
• Docket Number: No. 12776,12776
• Citation: 274 S.W.2d 131
• Parties: Dora JACKSON, Appellant, v. Minnie J. HERNANDEZ et vir., Appellees.
• Court: Texas Court of Appeals

Page 131

274 S.W.2d 131

Dora JACKSON, Appellant, v. Minnie J. HERNANDEZ et vir., Appellees.

No. 12776.

Court of Civil Appeals of Texas, Galveston.

Dec. 16, 1954.

Rehearing Denied Jan. 13, 1955.

James DeAnda, Houston, for appellant.

R. O. Kenley, and H. C. Davidson, Houston, for appellees.

HAMBLEN, Chief Justice.

This suit was instituted in the District Court of Harris County by the appellant, Dora Jackson, seeking partition of certain real property located in the City of Houston. The appellee, Minnie J. Hernandez, filed a cross-action seeking to engraft a parol trust in her favor in the property. After a trial before the court without a jury, judgment was entered denying appellant any relief in the partition action, and awarding appellee the title and possession of the property in question.

No findings of fact and conclusions of law were filed by the trial court. The proof, the competency and admissibility of much of which appellant strongly contests, is sufficient, if competent and admissible, to support the following factual basis upon which, appellee contends, the judgment properly rests.

Appellant and appellee are sisters, and are the sole heirs of Callatana Castro, who died in 1950. In 1927, Callatana Castro was in ill health, unable to work, had no income, and was dependent upon appellee with whom she resided for her support and maintenance. Prior to the purchase of the property in question, appellee and her mother discussed the purchase of a home for their joint occupancy and benefit. Such discussion resulted in an agreement between them that the property would be purchased in the name of the mother, but that appellee would pay for it, after which the mother would transfer the title to appellee, subject to her right to occupy it so long as she lived. Pursuant to such agreement, a contract was entered into on November 7, 1927, between the mother as purchaser, and J. H. Swope as seller, for the purchase of the property in question for a consideration of $1,600, $100 of which was to be paid in cash, and the balance in accordance with the contract, the terms of which are not material. There is proof, again if competent, that appellee made the cash payment, and all subsequent payments under the contract, and in addition made improvements to the property at a cost of $750. On July 31, 1930, J. H. Swope executed a deed to the mother, reciting $600 paid by her to him, and the assumption by her of the payment of a note in the sum of $1,000 payable to Miss Gussie Howard. On August 30, 1930, an extension agreement was made between the mother and Miss Gussie Howard for a renewal and rearrangement of the terms of payment of such note, all payments on which, until finally paid, being made by appellee. Appellee is not named in the contract of sale, the deed, or the extension agreement, the mother, Callatana Castro being named as purchaser, grantee, and mortgagor, respectively, and the release, dated January 2, 1936 also names only the mother. The title remained in that state throughout the mother's life, and was such when this suit was instituted. After the purchase of the property, it was occupied by the mother and appellee and at times by appellant, until the mother's death, and thereafter, until this suit was filed, by appellee alone.

The judgment of the trial court is attacked by appellant in four points of error. Points one and two are directed to the asserted error of the court in admitting and considering the testimony of the appellee, upon which the recited factual basis, and the finding of a parol trust in her favor, almost completely depend. Point three is directed to the insufficiency of the evidence to meet the law's requirement that the engrafting of a parol trust on land must be by evidence which is clear and convincing. Point four asserts that appellee's right to recover under the alleged trust is barred by the four year statute of limitations, and therefore the judgment is erroneous. For the reasons which we will undertake to state, this Court is of the opinion that upon the record before it, none of appellant's points presents reversible error, and that the judgment of the trial court should be affirmed.

Appellant's argument under her points one and two is premised upon the proposition that because the consideration for the conveyance to Callatana Castro of the property here involved is contractual, parol evidence is incompetent to establish a trust in favor of the appellee. For precedential support, appellant cites Kidd v. Young, Tex.Civ.App., 185 S.W.2d 173; Bradshaw v. McDonald, Tex.Civ.App., 211 S.W.2d 797; Loeb v. Wilhite, Tex.Civ.App., 224 S.W.2d 343; Knox v. Long, Tex.Civ.App., 251 S.W.2d 911; Id., Tex., 257 S.W.2d 289; Hillman v. Graves, Tex.Civ.App., 134 S.W.2d 436; Clayman v. Lindsay, Tex.Civ.App., 247 S.W.2d 300; and Enos v. Leediker, Tex.Civ.App., 214 S.W.2d 694. We have examined each of the cited authorities, and find them to be either not factually analogous to the present case, or to deal with legal propositions not here applicable. Kidd v. Young, for instance, was a suit by the grantor in a deed to engraft a trust as against the grantee in the deed, contrary to the contractual recitations in the deed itself. A similar factual situation is involved in Hillman v. Graves. Loeb v. Wilhite and Clayman v. Lindsay, supra, and Bates v. Bates, Tex.Civ.App., 270 S.W.2d 301, are cases dealing with the status of property conveyed to the wife as her separate property and estate and for which it is recited in the deed that the consideration was paid and payable out of her separate estate, and to which transaction the husband was an actual party. Similar distinctions might be pointed out in each of the authorities relied upon by appellant. Basically and primarily, however, the inapplicability of appellant's stated proposition, and the authorities which she cites in support thereof, to the present case, results from the fact that her basic legal proposition correctly states the law, only as it is applicable to implied or resulting trusts; whereas in this case, the appellee alleged, and offered proof which has been held to be competent, of an express trust. The difference rests in the fact that in the express trust, every legal element of a trust must be agreed to between trustee and cestui que trust, whereas in a resulting trust one of the elements, though not expressly agreed to, is supplied by operation of law. The early Chancery cases in England, dealing with use estates, established the...