Mead v. Randolph

• Decision Date: 01 January 1852
• Citation: 8 Tex. 191
• Parties: MEAD v. RANDOLPH.
• Court: Texas Supreme Court

8 Tex. 191

MEAD

v.RANDOLPH.

Supreme Court of Texas.

1852.

Parol evidence is admissible to prove that a deed or instrument absolute on its face was executed and delivered upon certain trusts not reduced to writing, and which the grantee promised to perform; and the same may be established. (Note 43.)

The doctrine that a deed absolute upon its face may be shown by parol proof to have been intended merely as a security for the payment of money recognized. (Note 44.)

Upon the same principle or basis is founded the rule which enjoins the specific performance of any promise by which another is prevented from performing an intended act, or through which he omits to make certain arrangements, provisions, or gifts, by will or otherwise, for other persons.

The only contract in relation to lands which is required by our statute of frauds and fraudulent conveyances to be in writing is the contract for their sale. Express trusts in relation to lands stand upon the same footing with implied or constructive trusts. The facts from which resulting trusts arise and the special contracts by which express trusts are created may alike be proved by parol evidence. (Note 45.)

The rules in relation to the proof of implied or constructive trusts might doubtless be applied advantageously to the proof of express parol trusts. It must be clear and satisfactory, and such as is reasonably attainable under the circumstances of the case. (Note 46.)

In a suit for specific performance, if the consideration of the contract be impeached by competent and credible evidence, it must be sustained by rebutting proof, or the bill will, according to the established rules of chancery practice, be dismissed; and where equity would not decree a specific performance, the jury ought not to find for the plaintiff in an action for specific performance under our system.

Where an action was brought for specific performance more than eight years after the date of the bond for title and the assignment of it, it was said that the unexplained staleness of the claim might be plausibly urged as a ground for the refusal of the prayer of the petition; that, to say the least, it threw suspicion upon its meritoriousness.

Error from Anderson. This is a suit for specific performance. The plaintiff, Randolph, administrator of one Elias Moore, deceased, averred that in the year 1838 one John McCoy sold to the defendant, M. P. Mead, a tract of one hundred and sixty acres of land, and executed a title bond for a valuable consideration, and that the said title bond was, for a valuable and bona fide consideration, paid by the said Moore to the said Mead, transferred some time after its execution to the said Moore by the said Mead, by means of which the said Moore in his lifetime and the petitioner since his death became entitled to all the legal and equitable interest in the said bond, and that neither the said McCoy nor the said Mead has as yet made a bona fide deed or title for the said land; that the bond has fallen into the hands of the said Mead, without the consent of either Moore in his lifetime or of the petitioner; that the same has not been canceled, and that the said Mead's possession thereof is contrary to law, he not having paid any consideration for the same. The plaintiff prays performance of the conditions of the bond and that a title be made to him.

The defendant demurred, and answered, admitting the execution of the title bond, as stated in the petition, and filing a copy of the said bond as an exhibit. He admitted his assignment to the plaintiff's intestate, as indorsed on said bond, but averred that the said assignment was not intended to vest any title to the said land in the said Moore, except in trust for the benefit of defendant and his children, under the following circumstances and inducements: The defendant preludes a statement of the transaction by a historical narrative, to the effect that he had married a daughter, now deceased, of the said Moore, leaving three children surviving her; that Moore and the defendant came to Texas together to seek homes; that the defendant purchased the land, paid for it with his own funds, and settled on it before the date of the bond, and has made valuable improvements thereon, and has for many years occupied the said land; that about the 4th day of March, 1838, the defendant was compelled by the hostilities of the Indians to abandon the premises, and that having engaged to go to Alabama and being in bad health, he desired to constitute his father-in-law, the said Moore, his agent during his absence, to obtain from McCoy a title for the said land for the benefit of the defendant, if he returned, or, in case of the death of defendant during his absence, then for the benefit of his children; that it was agreed between the said Moore and the defendant that, if the latter died during his absence, the said Moore should have eighty acres, or one-half of the land, for the raising of the children, and that no consideration was paid or stipulated to be received for the said sale of the land; that the defendant returned to Texas in July, 1838, and that the said Moore then delivered back to the defendant the said bond and assignment, and that in the month of October, in the same year, when about leaving again for Alabama to bring his own children and Moore's family to Texas, he, for the purpose aforesaid, again delivered the said bond to the said Moore, the latter agreeing to remain in Texas and make arrangements for the reception of both families, all intending to reside together; that Moore some time afterwards also went to Alabama, and started with both families for Texas, leaving the defendant to wind up some business; that Moore stopped on the road to make a crop, and there died; that some time subsequently, in 1840, the defendant removed the families to Texas; that the said bond was by the said Moore, previous to his departure from Texas, left in the possession of one John Grigsby, who died shortly after Moore's departure from Texas; that the bond was not heard of for several years, but was subsequently accidentally found by Crawford Grigsby among his father's papers; that the said Crawford Grigsby, (now also dead,) being one of the witnesses to the assignment, after a conversation with James Madden, the other attesting witness, (who is also dead,) and with Mrs. Moore, the widow of the said E. Moore, relative to the bond and the assignment, concluded, with the concurrence of the widow and the said Madden, that the bond was the property of the defendant, and it was accordingly surrendered, and has ever since remained in his possession. And the defendant prays that the said assignment may be canceled and that this defendant may be dismissed, &c.

On motion of the plaintiff, all that portion of defendant's answer which averred that the assignment from the defendant to Moore was made upon trust or for other purposes than those therein expressed was stricken out.

The jury found the allegations in the petition to be true, and there was a decree for a conveyance and for a writ of possession.

There was a motion for a new trial on several grounds, among which was the alleged error in charging that the jury must disregard all evidence tending to show that the assignment of Mead was conditional and in trust for his ultimate benefit, and did not absolutely vest his interest in the said Moore except so far as the consideration of the said assignments might be impeached by such evidence, and also upon the ground of newly-discovered evidence. This evidence was to the effect that the witness had held a conversation with Moore, in 1838, about the title to the land, and that Moore stated he was living upon the land which Mead had bought from McCoy, and that he had empowered him to get a title from McCoy, and that this was the land on which the defendant now lived. The motion for a new trial was overruled.

The defendant, on the trial, proved by D. H. Edens that he had lived on the land for eight or nine years; that he had lived on it ten or twelve years since, but abandoned it for a year or two on account of Indian hostilities; that Moore also lived on the land at the time of Mead's first residence there, but left it when Mead did, and never returned, having died in Tennessee about ten years ago; that the widow of the said Moore settled on the same land about the time of Mead's return to it, and that she and her family resided there until her death in 1842.

Lucinda Madden, in answer to interrogatories, deposed that the assignment was made at the house of her husband, James Madden; that from the statements of Mead to the witnesses of the assignment, she understood it to be a bond which had been executed from a certain John McCoy to said Mead for a certain tract of land, being the same on which Mead now lives; that Mead said he was going away from the country on business, and that if he never got back half of the land belonged to Moore and half to Mead's children, and that Mead said he was merely making the assignment so that in case he never got back Moore might get a title for the land, for he wanted Moore to raise his children, and that Moore replied his children should be raised anyhow. There was also proof that Mead, since the death of Mrs. Moore, had rented out the land, and had given corn to a son of Mrs. Moore for the support of his sisters, and that Mead had married a daughter of Moore, as stated in the answer. From a bill of exceptions it appeared that the judge charged the jury that they must disregard so much of the testimony of Mrs. Madden as went to impair the force and...