Kahle v. Stone

• Citation: 65 S.W. 623
• Parties: KAHLE v. STONE et al.
• Decision Date: 16 December 1901
• Court: Texas Supreme Court

Page 623

65 S.W. 623

KAHLE v. STONE et al.

Supreme Court of Texas.

December 16, 1901.

Error to court of civil appeals of Fifth supreme judicial district.

Action by Sarah Stone and others against M. S. Kahle. From a judgment in the court of civil appeals, reversing a judgment for defendant, defendant brings error. Reversed.

O. T. Plummer and English, Ewing & Walker, for plaintiff in error. Ramsey & Odell, H. P. Brown, and Finley, Etheridge & Knight, for defendants in error.

BROWN, J.

Sarah Berkson, Joseph Berkson, Rosa Stone, Yatta Stone, and Jennie Stone instituted this suit in the district court of Johnson county to recover of M. S. Kahle, plaintiff in error, 177 acres of land, situated in that county. Briefly stated, the claim of the plaintiffs was that Isaac Stone, their father, held some real estate in Cleburne, Johnson county, in trust for them, and received from the said real estate rents which, being in his hands, he applied to the purchase of the land in question, and that on the 6th day of March, 1882, J. H. Brumley and his wife, by deed of that date, conveyed the said land to Isaac Stone as trustee for the plaintiffs, in consideration of $2,500 paid and to be paid out of the funds which the said Isaac Stone held in trust for his said children. It was alleged that a cash payment of $200 was made of funds then on hand held in trust by the said Isaac Stone, and that the deferred payments were made out of the funds so held by the said Isaac Stone in trust for the plaintiffs. The deed by which the land was conveyed to Isaac Stone is in the following terms: "The State of Texas, County of Dallas. Know all men by these presents, that we, John H. Brumley and S. E. Brumley, husband and wife, of Johnson county, Texas, for and in consideration of twenty-five hundred dollars, viz. two hundred dollars cash in hand paid, the receipt whereof is hereby acknowledged, and two certain promissory notes, one for one thousand dollars ($1,000), to become due twelve months after date of this instrument, and the other for thirteen hundred dollars, to become due two years after this date, and each to draw interest at the rate of twelve per cent. per annum (the same being the separate funds of Sarah Stone, Yatta Stone, and Jennie Stone), do hereby bargain, sell, alien, and convey unto Isaac Stone, in trust for the sole use and benefit of them, the said Sarah, Yatta, and Jennie Stone, of the county of Johnson, state of Texas, the following described tract or parcel of land: * * *; to have and to hold the same, together with all and singular the appurtenances thereunto belonging, unto him, the said Isaac Stone, as trustee, his heirs and assigns, forever, in trust, however, for the sole use and benefit of the said Sarah, Yatta, and Jennie Stone. And the said Isaac Stone is hereby authorized and empowered to manage and lease or rent said premises, and to collect the rents, issues, and profits of the same, and to manage, use, and invest said funds for the use and benefit of the said Sarah, Yatta, and Jennie Stone. And he is also empowered to sell the said premises, or any part thereof, and to make to the purchaser or purchasers thereof a good and sufficient deed of conveyance thereto, and to manage, use, and invest the proceeds of such sale or sales for the use and benefit of the said beneficiaries aforesaid."

The defendants in the court below denied that the funds with which the purchase was made belonged to the trust fund held by Isaac Stone, but claimed that it was his individual property, and that by the said deed the title vested in the said Isaac Stone. The evidence was conflicting upon the question as to whom the funds with which the land was purchased belonged, and the court submitted that issue to the jury by proper instructions. The verdict necessarily implies that the jury found that the cash and deferred payments were made with the money belonging to Isaac Stone in his own individual right, and not with the trust funds. Isaac Stone conveyed this property to L. Stone, under whom the plaintiff in error claims. The court of civil appeals did not express any conclusion of fact contrary to the facts which must be implied to...