Markham v. Carothers

• Decision Date: 01 January 1877
• Parties: T. W. MARKHAM, SPECIAL GUARDIAN OF IRENE ROUNTREE, v. THOMAS CAROTHERS, ADM'R.
• Court: Texas Supreme Court

47 Tex. 21

T. W. MARKHAM, SPECIAL GUARDIAN OF IRENE ROUNTREE,

v.THOMAS CAROTHERS, ADM'R.

Supreme Court of Texas.

1877.

ERROR from Walker. Tried below before the Hon. J. R. Burnett.

This suit was commenced on the 21st April, 1868, by the legal representative of Thomas Carothers, deceased, to recover the title and possession of a house and lot in the town of Huntsville. J. M. Rountree and J. W. Bowden, being in possession, were made defendants.

At the November Term, 1868, Rountree and Bowden appeared and disclaimed title in themselves, and at the same term J. W. Bowden, as guardian of Irene Rountree, intervened and claimed title to one half the property sued for, in right of his ward, and averred that her father, J. M. Rountree, paid one half the purchase-money out of funds belonging to her, and that Carothers in his lifetime held it in trust for her.

At the November Term, 1869, Bowden, as guardian of Irene, amended his answer, and set up more fully how the fund was derived, which was invested in said house and lot, and that it was derived from the separate estate of her deceased mother; that one half the purchase-money paid for the property, to wit, $2,500, was hers, and was invested in it by her father, for her benefit, and that although the deed to it was taken in the name of Carothers, it was so taken with the express agreement that one half interest in it was held by him in trust for her, the said Irene, and that the testator of defendant in error, acknowleged her right to one half of the property, and signified his willingness to make title to her, and prayed for a decree compelling defendant in error to make title, &c.

At the March Term, 1874, Bowden's death was suggested; T W Markham was appointed special guardian of Irene, and amended the answer further, by averring that in right of his ward, she inherited a large sum of money and personal property; that it all went into the possession of her father, J. M. Rountree; that he held it in trust for her, and appropriated most of it to his own use after the death of her mother; and that to reimburse her for her interest in her mother's estate, he invested $2,500 of it in the house and lot in controversy, for her use and benefit, in discharge of so much of his obligations to her; that Carothers in his lifetime well knew the facts, and always admitted them, and her right to one half the property; and that if the purchase was not made with her funds, that it was a provision made for her by her father, by way of advancement, of which Carothers in his lifetime had notice, and agreed to hold for her. At the same term, the former administrator of Carothers was removed, and B. Eastham appointed instead, who by replication denied all the allegations of the answers.

On the trial, after the plaintiff had closed his evidence in chief, and after the defendant had examined several witnesses in support of the matters pleaded in his answer, it was announced for defendant, “that he had closed his evidence for the present;” and thereupon plaintiff, F. D. Thornton, testified in his behalf, and also read the will of Thomas Carothers, in evidence, and other testimony, to show title to the whole of the house and lot in controversy. The defendant called J. M. Rountree (one of the original defendants) as a witness, who was sworn, for the purpose of disproving the title set up by the plaintiff, and to show that one half interest therein was held by Carothers in trust for said intervenor, when plaintiff objected to the witness being allowed to testify, on the ground “that the defendant having closed the evidence in said case,” he could not be allowed to examine the witness for the purpose aforesaid, and also because he was not a competent witness; which objections were sustained, for the reason “the evidence offered was not rebuttal evidence, even admitting the witness to be competent.”

There was much and conflicting testimony. The court instructed the jury, after stating the case:

“The deed read in evidence by plaintiff, from L. C. Rountree to Carothers, vested the legal title to the property in Carothers, but it is competent for the intervenor to show by verbal evidence, that although the deed was taken in the name of Carothers, yet in fact J. M. Rountree, at the time, furnished half the purchase money, and part of the property was to be paid or given to his daughter (intervenor) in consideration of money or property of hers used by him, or as an advancement to her; and in such case, Carothers would hold half the property in trust for the intervenor. But to estabtablish a trust in intervenor's favor, the law requires that the evidence must be clear and satisfactory, and such as could be reasonably attainable under the circumstances of the case. The legal title being in Carothers's estate, a verbal trust, to be enforced, must be established with clearness and certainty; for otherwise, men would have no security that contracts would stand after they had been reduced to writing with the greatest consideration and solemnity. (Cuney v. Dupree, 21 Tex., 219.) But if the evidence, with clearness and certainty, shows a trust in intervenor's favor, she is entitled to have it enforced under the law. By clearness and certainty, as above charged, is not meant absolute certainty, but the trust should be established with clearness and beyond a reasonable doubt.”

The court further charged, that if Rountree paid half the purchase-money, but did so to defraud his creditors, &c., the jury should find for plaintiff.

The jury returned a verdict for the plaintiff, on which judgment was rendered. The defendant brought the case by writ of error to this court. The additional facts necessary to an understanding of the case are given in the opinion.J. M. Maxey, for plaintiff in error, cited Cuney v. Dupree, 21 Tex., 216; Browne on Frauds, secs. 84, 85, 91, 92; Story on Eq., sec. 1201, and note; Tarpley v. Poage, 2 Tex., 139;Portis v. Hill, 14 Tex., 69;Smith v. Strahan, 16 Tex., 314;Bailey v. Harris, 19 Tex., 108; Botsford v. Burr, 2 John. Ch., 405; 2 Wash. on Real Pr., 445; Wilson v. Trawick, 10 Tex., 428;Cobb v. Norwood, 11 Tex., 561;Avery v. Avery, 12 Tex., 54;Cook v. Tullis, 18 Wall., 332;Long v. Steiger, 8 Tex., 462;Gamage v. Trawick, 19 Tex., 64;Cummins v. Rice, 19 Tex., 226;Luckett v. Townsend, 3 Tex., 119;Austin v. Talk, 20 Tex., 167; 1 Gra. & Wat. on New Trials, 27.

L. A. Abercrombie, and Randolph & McKinney, cited 1 Greenl. Ev., sec. 469, and note; 3 Chitty's Gen. Pr., 908, Hopkins v. Clark, 20 Tex., 64;Miller v. Thatcher, 9 Tex., 482;Mead v. Randolph, 8 Tex., 191;McClenny v. Floyd, 10 Tex., 159;Grooms v. Rust, 27 Tex., 234;Lambert v. Weir, 27 Tex., 359;Griffin v. Chubb, 7 Tex., 612;DeWitt v. Miller, 9 Tex., 239;Williams v. Warnell, 28 Tex., 612.

GOULD, ASSOCIATE JUSTICE.

It appears, by the bill of exceptions, that the court excluded the testimony of J. M. Rountree on the ground that his competency was questionable, and on the further ground that the evidence offered was not evidence in rebuttal. We are of opinion that neither of these grounds are maintainable.

After his disclaimer, J. M. Rountree was not treated as a party to the...