Miller v. Whittenburg, 5168.

• Decision Date: 03 June 1940
• Docket Number: No. 5168.,5168.
• Citation: 144 S.W.2d 381
• Parties: MILLER v. WHITTENBURG et al.
• Court: Texas Court of Appeals

144 S.W.2d 381

MILLER v. WHITTENBURG et al.

No. 5168.

Court of Civil Appeals of Texas. Amarillo.

June 3, 1940.

Rehearing Denied October 21, 1940.

Appeal from District Court, Yoakum County; Louis B. Reed, Judge.

Suit by B. G. Miller against J. A. Whittenburg, Jr., and another, individually and as executors of the estate of J. A. Whittenburg, deceased, and others, to establish a parol trust upon title to land. From a judgment for defendants, plaintiff appeals.

Reversed and rendered.

R. P. Moreland, of Plains, and W. A. Nelson and H. S. Lattimore, both of Fort Worth, for appellant.

Joe J. McGowan, of Brownfield, and Sanders & Scott, of Amarillo, for appellees.

STOKES, Justice.

This suit was filed by appellant, B. G. Miller, against J. A. Whittenburg, Jr., and Roy R. Whittenburg, as executors of the estate of J. A. Whittenburg, deceased, and also against them individually and against all of the other appellees (except the Denver Producing & Refining Company, a corporation) as heirs at law of J. A. Whittenburg, deceased. The Denver Producing & Refining Company was made a defendant because of its relation to the subject matter of the controversy as the owner of an oil and gas lease on the land involved from which it has been producing oil, the royalty from which is involved in this suit. The purpose of the suit was to establish a parol trust upon the title held by the appellees which, it is alleged in substance, arose in the following manner: Appellant alleged that in August, 1929, and prior thereto, he was the owner of Sections Nos. 830, 831 and 863, Block D, of the John H. Gibson Surveys, in Yoakum County, upon which he was indebted to Edward Manson in the sum of $4,616, besides interest, evidenced by ten vendor's lien notes of $461.60 each; that about the date mentioned he consulted J. A. Whittenburg concerning the indebtedness and induced Whittenburg to advance the money due on the vendor's lien notes and acquire them from the payee, Edward Manson, which Whittenburg agreed to do; that in order to adjust the indebtedness in a manner satisfactory to Whittenburg, and at Whittenburg's request, appellant executed a new note in the sum of $5,500, payable to J. A. Whittenburg, at Amarillo, in Potter County, and, as additional security thereof, he simultaneously executed a deed of trust conveying the three sections of land to George A. Whittenburg, as trustee, to secure the payment of the indebtedness so held by J. A. Whittenburg. He alleged that in November, 1931, he was delinquent in the payment of interest due on the note and was negotiating with the Panhandle Lumber Company in an effort to exchange his interest in the three sections of land for five houses and premises owned by the Lumber Company at Lubbock. He alleged that he consulted with J. A. Whittenburg and was advised by Whittenburg against making such an exchange. He alleged that in the conversation it was agreed between him and Whittenburg that appellant would allow Whittenburg to take and hold the record title to the three sections and that, in consideration thereof, Whittenburg agreed that one-half of the royalty from any oil or gas that may be produced from the land should belong to appellant and should at all times be held by Whittenburg in trust for him.

Further allegations are to the effect that appellant carried out his portion of the agreement and executed a deed and placed it in the bank at Amarillo to be delivered to Whittenburg, but that Whittenburg preferred the title through foreclosure proceedings and instituted suit upon the note in which he procured a judgment against appellant for the amount due thereon and foreclosed the deed of trust lien on the land which he thereafter purchased at the sheriff's sale on April 5, 1932.

J. A. Whittenburg afterwards died and on the 20th of July, 1937, the individual appellees, as his executors and surviving heirs, executed to the appellee, Denver Producing & Refining Company, an oil and gas lease under which the lessee Company prospected for, produced, and is still producing, oil in considerable quantities. Appellant's suit is for the recovery of one-half of the proceeds of the royalty interests that have been collected by appellees under the oil lease and to establish a parol trust in his behalf upon the title held by the individual appellees through the alleged agreement which he had with their ancestor, J. A. Whittenburg, for one-half of the royalty interest in the land.

Appellees answered by numerous exceptions, general denial, the statute of frauds, the two, three, four and five years statutes of limitation, and other defenses not necessary to mention.

The case was submitted to a jury upon special issues, in answer to which the jury found, substantially, that in November, 1931, J. A. Whittenburg agreed with appellant that if appellant would let Whittenburg have the three sections of land he would allow appellant one-half of the royalty from any oil and gas that may be produced thereon and that the agreement was supported by a valuable consideration. They further found that appellant performed his part of the agreement; that appellees and their predecessor in title, J. A. Whittenburg, either in person or through persons claiming through them, had held peaceable and adverse possession of the lands in controversy for three years and for five years prior to November 23, 1938, and that J. A. Whittenburg breached the agreement with appellant in 1931 or 1932. Upon a motion filed by appellees the court rendered judgment upon the verdict in their favor apparently upon the theory that the findings of the jury upon the issues of three and five years limitation entitled appellees to a judgment notwithstanding the findings of the jury to the effect that the agreement alleged by appellant had been entered into between him and J. A. Whittenburg.

Appellant filed and urged a motion for a judgment non obstante veredicto and, after the same was overruled and judgment rendered in favor of appellees, he filed a motion for a new trial which was overruled and he duly excepted and perfected an appeal to this court.

The briefs contain a number of assignments of error, propositions of law and counter-propositions, but we do not deem it necessary to discuss them in their order. The controlling issues in the case are, first, whether or not the findings of the jury, in effect, that the parol trust was created, has support in the evidence and, secondly, whether or not the appellees were entitled to judgment under the statutes of three and five years limitation.

Since the decision of the Supreme Court in the case of James v. Fulcrod, 5 Tex. 512, 55 Am.Dec. 743, it has consistently been held by the courts of this state that, under our statute of frauds, it is permissible to ingraft by parol an express trust upon a deed which is absolute upon its face. Faville v. Robinson, 111 Tex. 48, 227 S.W. 938; Tieman v. Dyer, Tex.Civ. App., 114 S.W.2d 669. We think it is hardly necessary to explain the reasoning of Justice Hemphill in that pioneer decision. A marked distinction is observed between our statute of frauds, Vernon's Ann.Civ. St. art. 3995, and the English act for the prevention of frauds and perjuries which is, in effect, that the English act encompasses any contract or sale of lands, tenements or hereditaments, "or any interest in or concerning them," whereas our statute encompasses only "any contract for the sale of lands, etc." The question of whether or not a parol trust was established in the instant case depends upon the testimony of two witnesses, viz., Ben Miller, son of appellant, and G. M. Hamilton. According to the testimony of these witnesses, J. A. Whittenburg, who resided at Amarillo, in Potter County, in company with his son, George A. Whittenburg, who resided in Randal County, were at the Miller ranch, consisting of the three sections of land here involved, in the latter part of November, 1931. Ben Miller testified that on that occasion he heard a conversation between his father, the appellant, and J. A. Whittenburg in which the proposed exchange between appellant and the Panhandle Lumber Company was discussed, and that Mr. Whittenburg told appellant, in effect, that the old houses at Lubbock were probably too old to be capable of producing any revenue and that, if they were not so, the Lumber Company would not be wanting to dispose of them and that the Lumber Company would probably take them from appellant sooner or later. The record shows that the houses at Lubbock, were encumbered for several thousand dollars. This witness further testified that Mr. Whittenburg said to appellant: "I never sold any land. If you will let me take this land over, half the royalty is yours." He said that, in reply to these statements, appellant told Mr. Whittenburg that it seemed to be about as good a thing as appellant could do and that he would just go ahead and let Whittenburg take it. The witness Hamilton testified that he also was present and heard the conversation. His version of it was that Whittenburg said to appellant that if appellant would let Whittenburg have the land and handle it, Whittenburg would "give him one-half royalty." He said that appellant then told Whittenburg that he would do that. There is no testimony in the record that either Whittenburg or appellant ever told any other person of the alleged agreement. The record shows that in July, 1931, some four months prior to the alleged conversation at the Miller ranch, Whittenburg's attorneys began a course of correspondence with appellant in which they asked him to pay the delinquent interest on the note held by Whittenburg and threatened to file suit thereon. On August 12, 1931, appellant wrote the attorneys that they need not go to the expense of foreclosure proceedings because, if he could not procure a loan on the land, he would convey it to Mr. Whittenburg and thus save the expense of foreclosure proceedings. The correspondence continued...