Miller v. Donald, 15187

• Decision Date: 17 November 1950
• Docket Number: No. 15187,15187
• Parties: MILLER v. DONALD.
• Court: Texas Court of Appeals

Page 201

235 S.W.2d 201

MILLER v. DONALD.

No. 15187.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 17, 1950.

Rehearing Denied Dec. 22, 1950.

McDonald & Anderson, of Wichita Falls, for appellant.

Paul Donald, and T. B. Coffield, both of Bowie, for appellee.

SPEER, Justice.

Appellee J. M. Donald, a practicing attorney at Bowie, Texas, filed this suit against appellant E. D. Miller to recover title to one-half of the mineral rights in a described 40 acres of land in Montague County, Texas, alleging, among other things, that while the record title was in appellant, the equitable title was held by him in trust for appellee.

The petition detailed asserted facts showing that on January 1, 1944, one J. M. Nored came to appellee's office and offered to sell an oil and gas lease and one-half mineral right in the described 40 acres of land for $800; that appellee, being short of ready cash, went to appellant, then in a room or office separate and apart from that in which negotiations between appellee and the seller had been carried on, and proposed to appellant that if he would put up the cash the lease and mineral deed would be taken in his name and when sold he should be reimbursed for his investment and all profits would be divided between the two; that appellant agreed to the arrangement and appellee closed the deal with the seller. Appellant then left the office of appellee and the latter drew up the lease and mineral deed contracts, naming appellant as lessee and grantee respectively. That in the afternoon appellant returned to appellee's office and informed him he was short of cash and could not go on with the deal; that the papers had then been drawn and the seller had gone home to another town in the county; that appellee told appellant he had promised the seller to make the purchase and felt bound to do so, and asked appellant to permit the purchase by appellee to be closed with the papers all drawn naming appellant lessee and grantee and that he could hold title in trust for appellee; that appellant agreed this could be done. That with the changed situation appellee had a written statement prepared in his office on his stationery, dated January 1, 1944, addressed to Donald and Donald, attorneys, and signed by appellant, which reads: 'Gentlemen: I hold one-half (1/2) minerals under 40 acres out of the T. Allen Survey, Abstract No. 12, and an oil and gas lease under entire 40 acres for your benefit.'

There were further allegations to the effect that after abstracts were compiled and curative matters of title were had, appellee took the instruments to the seller, had them executed and paid the entire consideration.

After certain special exceptions had been filed by appellant, appellee filed a supplemental pleading, repeating much that had been said in his original petition, the supplemental pleading contains this allegation: 'That since all the money and consideration was furnished by plaintiff a resulting trust existed and now exists in favor of plaintiff and defendant holds title to said mineral estate in trust for plaintiff who owns the equitable title to said estate by reason of having furnished the entire consideration therefor.'

Appellee further alleged, in substance, that subsequent to the time he paid to the seller the entire consideration and thereby procured the execution and delivery of both the lease and mineral deed, he arranged a sale of the leasehold interest to another party and upon request the appellant (in whose name the title stood) executed and delivered to the purchaser an assignment thereof and the purchaser paid the consideration to appellee and appellant never at any time claimed any part of it. That a few weeks prior to filing this suit, appellee requested appellant to convey to him the mineral interest still remaining in appellant's name and he agreed to do so but at the time of filing suit he had not made such conveyance. Prayer was for recovery of the mineral rights and for $80 rentals previously collected by appellant.

Appellant as defendant below answered by general denial and by several special defenses, in which he relied upon the statute of frauds and the Texas Trust Act, as contained in Article 7425b-1 et seq., and also the two, three and four-year statutes of limitation. Vernon's Ann.Civ.St. arts. 5526, 5507, 5529. He further specially answered in substance that he and appellee had on many occasions entered into joint adventures, such as the one here involved, and that on or about January 1, 1944, they agreed to purchase jointly the property here involved but that before closing the deal appellee declined to go through with it and appellant then purchased the lease and mineral rights, paid the full consideration and took title in his own name and has at all times since been the owner of said mineral rights. Denial was made of the statement or memorandum (hereinabove quoted) concerning the acknowledgement of a trust by appellant and a lack of consideration for any such statement, if one was made. He prayed that appellee take nothing by his suit.

By the pleadings thus summarized, it will be noted that a very definite issue of whether or not some form of trust was raised by appellee and that all such offorts on the part of appellee were vigorously denied and contested by appellant. Each party testified to the facts asserted by him in the pleadings and went to great length to corroborate his contentions. The testimony is and just as conflicting as the respective pleadings. Any attempt to analyze all the testimony would required much time and result in an opinion all too long. Appellant moved for an instructed verdict and it was overruled.

The jury's verdict was favorable to appellee. Judgment was entered on the verdict and this appeal followed.

The answers to special issues submitted found: (1 and 2) J. M. Donald (appellee) furnished the full amount of money paid to J. M. Nored, seller, for the oil and gas lease and for the mineral deed prior to their delivery by the seller. (3 and 4) Prior to execution and delivery by the seller of the lease and the mineral deed, E. D. Miller (appellant) had agreed to permit them to be taken in his name for the benefit of J. M. Donald (appellee). (5 and 6) E. D. Miller took title to the oil and gas lease and to the mineral deed in question for the sole benefit of J. M. Donald. Conditioned upon affirmative answers to special issues 3 and 4, the jury found: (7 and 8) that Miller never repudiated his agreement with appellee.

There were other issues submitted conditioned upon the nature of answers made to some of the foregoing issues and since the conditional requests did not require answers, the verdict was returned without answers to those issues. There is no complaint by point of error in this court that the trial court refused to submit the several special issues requested en bloc by appellant.

It will be borne in mind that while there are references in the pleadings to two instruments, executed simultaneously, one an oil and gas lease on the described 40 acrs and the other a conveyance of an undivided one-half interest in the mineral rights therein, yet the leasehold interest has been sold and assigned to a third party and is not involved in this suit. Apparently the leasehold interest came into the case for the purpose of showing that appellant claimed no rights therein by reason of the fact that the legal title in both instruments stood in his name, since when he assigned the leasehold interest at appellee's request, appellee received the consideration and appellant claimed no interest in it. In these matters there is no conflict in the testimony. Only the title passing under the mineral deed is involved in this suit.

Appellant's points one, two and three challenge the actions of the court (1) in overruling his special exceptions to the petition wherein it is alleged haec verba the written statement contained in the letter of January 1, 1944, hereinabove quoted; and (2 and 3) in admitting testimony over appellant's objections as to what land the letter referred to, because the letter did not contain sufficient information to be selfexplanatory.

Appellant argues under the foregoing points that the offending statement or letter was plead and relied upon by appellee as evidence of an express trust (our emphasis) as between the parties, and since the written instrument or letter does not describe the land to be affected nor otherwise identify it, it is insufficient to create an express trust in land and the court should have sustained his special exceptions to that part of the pleading; and further the court should have sustained his objections to appellee's parol testimony explaining what land was referred to in the letter.

If the record before us had presented a situation that amounted to an express trust in the title, appellant's contentions with respect to these points would be correct. Texas Trust Act, Article 7425b, § 2, V.A.C.S. The cited section of the Act makes it plain that it is not applicable to other types of trusts, including 'resulting or constructive' trusts.

Trusts are classified generally as of two kinds-express and implied trusts. 42 Tex.Jur., p. 604, § 6; 9 Tex.Jur., 10 year supp., p. 456, § 6; Lang v....