Miller v. Thatcher

• Decision Date: 01 January 1853
• Parties: MILLER v. THATCHER.
• Court: Texas Supreme Court

9 Tex. 482

MILLER

v.THATCHER.

Supreme Court of Texas.

1853.

Trusts are not included in our statute of frauds, and may therefore be proved, as at common law, by parol. (Note 79.)

It seems that the testimony of a single witness swearing to the admissions of an alleged trustee is insufficient to establish a trust in lands, although the alleged trustee be living and his answer denying the trust be not under oath. (Note 80.)

An administrator is a competent witness in a suit between third parties to prove that a conveyance which was made by his intestate, and which purported to be an absolute sale, was a conveyance in trust to reimburse both contending parties for money paid by them as sureties of the intestate. (Note 81.)

It seems that a deputy clerk of the County Court is not authorized to take the proof or acknowledgment of instruments for record. (Note 82.)

Where one receives a conveyance of property in trust to reimburse himself and another for money paid, and a suit is brought to enforce the trust on the part of the second cestui que trust, a decree may be prayed for and made to the effect that the trustee pay to the plaintiff the amount intended to be secured by a certain day, and in case of his failure to do so, then that the property be sold, &c.

Appeal from Colorado. In this case the answer was not sworn to, the law not requiring it. The facts are stated in the opinion.

G. A. Jones, for appellant.

LIPSCOMB, J.

The plaintiff in the court below, who is the appellee in this court, filed his petition to subject certain lands and land certificates, conveyed by one Gardiner to Miller, the appellant, to the satisfaction and reimbursement to him of a certain sum of money paid as security to Gardiner; and he alleges that the land and certificates so transferred were conveyed for the purpose of remunerating the said Miller and himself for money paid as security for him, the said Gardiner; that Miller was a co-security with the petitioner for Gardiner; that although the said conveyance is on its face absolute and unconditional to Miller, it was intended for the joint reimbursement of the petitioner and Miller for all such sums as they had been compelled to pay for Gardiner, as his securities, and was so acknowledged to be by the said Miller. He prays “that Miller may be decreed to deliver over to petitioner one half of the property so conveyed by Gardiner, or so much thereof as may be sufficient to secure him against the amount he has paid for said Gardiner; or, failing to do so, that he be compelled to pay your petitioner the amount of the loss which he has sustained by signing the note aforesaid, to wit, the sum of one hundred and twenty-five dollars, with interest from the date, and for such other relief as to equity may appertain.”

The answer admits the conveyance, but denies that it was made for the benefit of the plaintiff. It alleges that it was conveyed in consideration of different sums of money paid by the defendant, specifying the sums, as security for the said Gardiner. The defendant, before answering, demurred to the petition, which was overruled by the court. There was a decree in favor of the plaintiff that the defendant should pay to him the amount paid as security for Gardiner and costs.

The overruling the demurrer is the first error assigned and will be the first considered.

The petition is very badly drawn and is obnoxious to criticism in many respects; but it alleges facts that if proven would create an express trust that would entitle the petitioner to relief. The demurrer was therefore properly overruled.

The trust being an express trust, we will next inquire whether it was proven. There could be no proof of a declaration of an express trust by oral testimony, under the statute of frauds of 29 Charles II, ch. 3, sec. 7, which required that it should be in writing, signed by the party. In this case there was no such evidence of the express trust as is required by the statute cited. This case, however, is not to be tried by the English statute, but by the common law, if not provided for by our statute of frauds. And this court has clearly shown and decided that trusts are not embraced in our statute, and that a trust may be proven as at common law by parol evidence. (See James v. Fulcrod, 5 Tex. R., 512; Mead v. Randolph, 8 Tex. R.) In the two cases cited the question of the admissibility of parol testimony was maturely considered, and it was clearly shown to be admissible, because not prohibited by our statute of frauds, and it is no longer an open question in this court.

We will proceed to inquire if the evidence of the trust in this case was sufficient to sustain a decree in favor of the plaintiff. It was proven by one witness only, unsupported, as is believed, by any corroborating circumstances. The evidence is short and we will insert it here: Cherry, a witness for the plaintiff, testified, “That he heard the defendant tell the plaintiff, in conversation that took place between them at Columbus, that Gardiner had conveyed the land and property in the said deed to him, the defendant, to indemnify him as security on a note of seven hundred dollars to W. G. Foley, as well as to indemnify him, the defendant, and the plaintiff as securities on the two hundred dollar note; that defendant told the plaintiff on the said occasion that Gardiner had conveyed to the defendant sufficient property to settle both debts and indemnify him, defendant, and plaintiff.” The question of...