Lassiter v. Bouche

• Decision Date: 31 March 1928
• Docket Number: (No. 10171.)
• Citation: 5 S.W.2d 831
• Parties: LASSITER v. BOUCHE et al.
• Court: Texas Court of Appeals

5 S.W.2d 831

LASSITER v. BOUCHE et al.

(No. 10171.)

Court of Civil Appeals of Texas. Dallas.

March 31, 1928.

Rehearing Denied April 28, 1928.

Appeal from District Court, Dallas County; Newman Phillip, Judge.

Suit by Mrs. M. W. Lassiter against Jennie L. Bouche and others. Judgment for defendants, and plaintiff appeals. Affirmed.

White & Yarborough, of Dallas, for appellant.

Locke, Locke, Stroud & Randolph, of Dallas, for appellees.

LOONEY, J.

Appellant, Mrs. M. W. Lassiter, sought to establish an express trust in a certain lot of land situated in the city of Dallas, and, based on the existence of the trust, she sought to recover a one-half interest in the lot.

The land in question constituted a part of the community estate of Elisha H. Kendall and his wife, Julia Kendall. Elisha Kendall died intestate in the year 1879, leaving surviving his widow, Julia, and three children, to wit, Jennie L. Bouche, wife of A. E. Bouche, C. P. Kendall, and Mollie E. Wright, wife of J. W. Wright, the latter two being the mother and father of appellant.

On April 23, 1883, Mrs. Wright, joined by her husband, conveyed by general warranty deed her undivided one-sixth interest in the lot in question, together with other lands in the city of Dallas, inherited from her father, to her sister, Mrs. Bouche, and her brother, C. P. Kendall. The recited consideration for this conveyance was $1,250 cash, and the conveyance by grantees to her of 160 acres of land situated in Marion county, Tex.

C. P. Kendall died on January 10, 1895, leaving a will, by the terms of which, among other small bequests, he left to his sister, Mrs. Wright, $50 in cash, with the stipulation that she should receive nothing further from his estate. The remainder of his estate, including his interest in the land in controversy, he left to his mother, Julia Kendall, for life, with remainder in fee to his nephew, Julius Edmond Bouche. Mrs. Julia Kendall died in September, 1896, leaving a will, and, among certain small legacies, one was in favor of her daughter, Mrs. Wright, for $50 in cash and a sewing machine, containing a provision, however, that she should receive nothing further from the estate. The balance of her estate, including her half interest in the land in controversy, testator left in equal portions to her daughter, Mrs. Bouche, and her son, C. P. Kendall, with a provision that, in the event of the death of C. P. Kendall prior to her death, the property left to him should go to her grandson, Julius Edmond Bouche. These wills were duly probated, inventories and appraisements were filed, including the interest as above stated of each testator in the land in controversy.

Thus it will be seen that the legal title to the lot in question at the time of the death of Julia Kendall in 1896 stood one-half in Mrs. Jennie Bouche, made up as follows: One-sixth inherited from her father; one-twelfth conveyed to her by her sister, Mollie Wright and husband in 1883; and one-fourth acquired through the will of her mother. The legal title to the other half of the lot was in Julius Edmond Bouche, made up of the one-fourth acquired under the will of his uncle, C. P. Kendall, and one-fourth under the will of his grandmother. This was the status of the legal title at the time this suit was instituted on October 23, 1924.

In regard to the existence of the trust sought to be established, appellant alleged, in substance, that the deed executed April 23, 1883, by her mother, Mollie E. Wright, and her father, J. W. Wright, conveying their interest in the lot in question to C. P. Kendall and Jennie L. Bouche, was for the purpose of protecting C. P. Kendall, who, it seems, was an invalid, and Mrs. Julia Kendall, the mother, in the use and occupancy of the lot so long as either should live, on the agreement then made by and between Mollie E. Wright on the one part and C. P. Kendall, Jennie L. Bouche, and Mrs. Julia Kendall on the other that, when both C. P. Kendall and Mrs. Julia Kendall were dead, the land in question would be owned and divided equally between Mollie E. Wright and Jennie L. Bouche. Appellant further alleged that the wills of C. P. Kendall and Mrs. Julia Kendall disregarded this agreement, and were the result of undue influence brought to bear upon testators; that C. P. Kendall was an imbecile, and mentally incapacitated to execute a will; that soon after the death of Julia Kendall, on or about September 10, 1896, Mollie E. Wright, mother of appellant, demanded of defendant, Jennie L. Bouche, a partition of the property in accordance with the agreement of 1883, and, after a verbal dispute as to the existence of such an agreement, it was then agreed between Mollie E. Wright and Mrs. Bouche that, if Mrs. Wright, who was then questioning the validity of the wills in question, would refrain from contesting the will of Julia Kendall, which had not at that time been probated, and would refrain from filing a suit to set aside the will of C. P. Kendall, which had been probated, Mrs. Bouche would hold the land in trust for Mrs. Wright and Julius Edmond Bouche until the death of her husband, A. E. Bouche (who, it seems, was appointed executor in each of said wills), unless a favorable opportunity for the sale of said property should be presented prior to his death; that it was further understood that A. E. Bouche should manage and control the property, collect rents therefrom, pay taxes and expenses of upkeep, and, if a surplus remained, one-half was to be paid to Mrs. Wright; and that, in pursuance of said agreement, A. E. Bouche retained custody and control of the land, collected rents therefrom, paid taxes and expenses of upkeep, and paid to Mrs. Wright one-half of the excess, and that this agreement was not repudiated by Mrs. Bouche until on or about October 10, 1924, a short time prior to the institution of this suit.

Appellant supported her allegations as to the existence of the trust by her own testimony to this effect: That in the year 1896 she overheard a conversation between her mother, Mollie E. Wright, and her aunt, Jennie L. Bouche, in which Mrs. Bouche expressed surprise that Mrs. Wright should claim any interest in the property. She denied that Mrs. Wright had any interest, as she had conveyed the same to her and her brother, C. P. Kendall, by the deed executed in 1883. But finally, after some wrangling over the proposition, Mrs. Bouche admitted the existence of the trust agreement, and then agreed with Mrs. Wright that, if she would neither contest the will of Mrs. Julia Kendall nor file a suit to set aside the will of C. P. Kendall, she would hold the property for the interest of Mrs. Wright and Julius Edmond Bouche until the death of her husband, A. E. Bouche, who was to manage the property in the meantime, or until the property had so increased in value as that it would be to the best interests of the parties to sell the same.

Upon the conclusion of appellant's evidence, the court instructed a verdict for appellees, and judgment was rendered accordingly, from which this appeal is prosecuted.

The questions discussed below have been properly presented by assignments and cross-assignments of error and related propositions.

The doctrine that a parole trust may be engrafted on a deed absolute in form is well established in the jurisprudence of this state. James v. Fulcrod, 5 Tex. 512, 55 Am. Dec. 743; Bailey v. Harris, 19 Tex. 109; Leakey v. Gunter, 25 Tex. 400, 401; Agricultural, etc., Ass'n v. Brewster, 51 Tex. 257; Carl v. Settegast (Tex. Civ. App.) 211 S. W. 506; Carl v. Settegast (Tex. Com. App.) 237 S. W. 238.

Giving the testimony of appellant its full face value, the agreement of 1883 necessarily contemplated that Mrs. Julia Kendall, who owned a half interest, and C. P. Kendall, who owned a one-sixth interest in the lot of land, would, in some form, convey their respective interests to Mrs. Wright and Mrs. Bouche, to the end that, at the death of both, title would be in Mrs. Wright and Mrs. Bouche in equal portions; in other words, for a valuable consideration a contract for the sale and conveyance of real estate was thereby entered into.

As neither the agreement nor a memorandum thereof was reduced to writing, and signed by the parties to be charged, or by any one authorized to sign for them, the same was, in our opinion, violative of article 1288 (1103) (624) (548), R. S. 1925, that prohibits the conveyance of estates of inheritance or freehold in lands except by written conveyance, and was also violative of article 3995 (3965) (2543) (2464), R. S. 1925, which declares that no action may be brought upon any contract for the sale of real estate, unless the agreement or some memorandum thereof is in writing and signed by the party to be charged.

The alleged agreement of September, 1896, between Mrs. Wright and Mrs. Bouche was to the effect that, if Mrs. Wright would forego her legal right as heir to contest the will of her mother, and refrain from suing to set aside the will of her brother, Mrs. Bouche would hold the land in trust for the joint benefit of Mrs. Wright and Julius Edmond Bouche, until the death of her husband, A. E. Bouche (executor under both wills above mentioned), unless a profitable sale for the property could be made prior to his death, and, in the meantime, Mrs. Wright should share equally in all rents and revenues therefrom in excess of taxes, expenses, etc. At the time this alleged agreement was made, Mrs. Bouche owned the legal title to an undivided one-half interest in the land in question, and was a married woman. This agreement was verbal, and contemplated a conveyance by Mrs. Bouche to Mrs. Wright of an estate of inheritance or freehold in the land within the meaning of article 1288 (1103) (624) (548), R. S. 1925, and was a contract for the sale of land on a valuable consideration within the meaning of article 3995, R. S. 1925. That the alleged abandonment by Mrs. Wright of her privilege as heir at law of...