Leakey v. Gunter

• Decision Date: 01 January 1860
• Citation: 25 Tex. 400
• Parties: W. B. LEAKEY v. ISAAC J. GUNTER.
• Court: Texas Supreme Court

25 Tex. 400

W. B. LEAKEY

v.ISAAC J. GUNTER.

Supreme Court of Texas.

1860.

Where both parties derive their title to land by the same conveyance, a suit brought by one of them against the other, the object of which is to establish that the legal title vested in the defendant by that conveyance was held by him in trust for the plaintiff, and to compel the execution of the trust, is not an ordinary action of trespass to try title, but a suit to enforce the equitable title against the trustee of the legal estate.

To enable the plaintiff to recover in such an action, it is not incumbent upon him to deraign title from the government. The rule requiring the plaintiff, in ordinary actions of trespass to try title, to recover upon the strength of his own title does not apply.

It is settled by repeated decisions of this court that trusts in land, as well those which are created by express contract as those which are implied and result by construction of law, are not within the provision of the statute of frauds, and consequently need not be evidenced by writing. 8 Tex. 191;27 Tex. 231.

It is competent to prove by parol that the plaintiff was in fact the purchaser, and for whose benefit the purchase was made, though the deed may have been taken in the name of the defendant. Conversations occurring during the negotiations for the purchase are admissible as a part of the res gestæ.

APPEAL from Wood. Tried below before the Hon. C. A. Frazer.

This was a suit brought by the appellee against the appellant, for the purpose expressed in the opinion of the court, to wit: to establish that the legal title vested in the defendant by a certain conveyance to him was held by him in trust for the plaintiff, and to compel the execution of the trust. The ground of action substantially was, according to the allegations of the petition, that the plaintiff had contracted to purchase from J. M. Clark, as the agent of J. E. Lemon, a tract of land comprising thirty acres, for the price of two hundred and fifty dollars; the inducement on his part being to acquire six acres thereof, upon which was situated a brick yard and well; that after making said agreement, he proposed to the defendant, who was his son-in-law, that if the latter would pay fifty dollars of the price, the plaintiff would pay the residue, and reserving the six acres for himself, allow the defendant to have the remaining twenty-four acres. Which proposal was agreed to, and the boundary lines between them stipulated for and determined. The petition alleged the value of the defendant's portion (on which was a house and ten or fifteen acres under fence) to be two hundred dollars, and the residue worth not more than sixty dollars, except for the purpose of a brick yard; that he was induced to make the arrangement on account of the relationship between them. Petition alleges that in December, 1857, plaintiff being the occupant, gave defendant permission to take possession of the twenty-four acres, and he retained possession of that part reserved for himself. In January, 1858, plaintiff placed in the hands of the defendant a note on one John M. Boyd, for two hundred and thirty dollars, to collect as his agent, and from the proceeds thereof to pay for the land purchased as aforesaid. The note was collected by the defendant, and two hundred dollars thereof paid by him to the agents of Lemon, and from one of them, J. W. Greer, received a deed to himself for the entire tract of thirty acres.

The defendant demurred to the petition, pleaded a general denial, and an answer in full to the facts of the petition, in effect being special traverses of the allegations made by the plaintiff, and claiming that the Boyd note was given to him by the plaintiff; and that the contract under which he received the conveyance from Clark & Greer (the agents of Lemon) was wholly independent of, and disconnected with any proposals before that time made by the plaintiff for the land. The defendant also pleaded that the contract set up by the plaintiff in regard to the land, under which he claimed, was not in writing, and void under the statute of frauds.

The plaintiff introduced, in evidence, the deed from John E. Lemon by his agent, J. W. Greer, to Isaac J. Gunter for the thirty acres of land, dated 3d of March, 1858; a...