Millsaps v. Moon, 11592.

• Decision Date: 20 February 1946
• Docket Number: No. 11592.,11592.
• Parties: MILLSAPS v. MOON.
• Court: Texas Court of Appeals

Page 221

193 S.W.2d 221

MILLSAPS v. MOON.

No. 11592.

Court of Civil Appeals of Texas. San Antonio.

February 20, 1946.

Rehearing Denied March 20, 1946.

Appeal from District Court, Hidalgo County, Ninety-Third District; W. R. Blalock, Judge.

Suit by W. H. Moon against O. J. Millsaps to remove cloud from title to realty. Judgment for plaintiff, and defendant appeals.

Judgment affirmed.

E. A. McDaniel, of McAllen, for appellant.

L. J. Polk, of Pharr, for appellee.

NORVELL, Justice.

This is a suit to remove cloud from title. The court below, after a trial without a jury, rendered judgment for the plaintiff, W. H. Moon. Findings of fact and conclusions of law were filed.

The record title to the property here involved was in W. H. Moon by virtue of a deed absolute upon its face, which had been executed by appellant, O. J. Millsaps, and his then wife, as grantors, to W. H. Moon, grantee. This deed was dated September 12, 1939, but for some reason was not filed for record in the office of the County Clerk of Hidalgo County until September 7, 1940.

On the 22d day of November, 1944, Millsaps executed and filed for record an affidavit stating that Moon was holding title to the land as trustee for Millsaps, insofar as an undivided one-half interest was concerned. The filing of this affidavit resulted in Moon's losing a sale of the premises and caused him to bring this lawsuit.

By introducing in evidence the deed from Millsaps to Moon, appellee made out a prima facie case of absolute ownership as against Millsaps. The trial court concluded as a matter of law that Millsaps "did not discharge the burden of showing by clear and convincing proof that a parol trust should be grafted upon the deed in question" (the deed from Millsaps to Moon).

In order for appellant to overcome appellee's prima facie case it was necessary that he offer evidence which met the legal test of being clear and convincing. Appellant's first point, which complains of the trial court's placing this burden upon him is overruled, for "it is settled in Texas that the presumption of law is that a deed conveys the property therein described to the grantee named in the deed and that he is the owner thereof. To overcome this presumption and engraft a parol trust on a deed the party asserting such trust has the burden of showing the parol trust by clear, satisfactory and convincing proof thereof." Clayton v. Ancell, 140 Tex. 441, 168 S.W.2d 230, 232, Id., Tex.Civ.App., 159 S.W.2d 962.

Under his remaining point, appellant contends that as the testimony of Millsaps and Moon, relative to the transaction which gave rise to the deed, is conflicting, controlling effect must be given to positive actions taken by the parties with reference to the premises after the date of the execution of the deed from Millsaps to Moon (September 12,...