Morrison v. Farmer
| Decision Date | 08 March 1948 |
| Docket Number | No. 5848.,5848. |
| Citation | 210 S.W.2d 245 |
| Parties | MORRISON v. FARMER. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Paine L. Bush, Judge.
Action by Viola J. Farmer against D. H. Morrison to enforce a trust, and in the alternative for damages for conversion of a house. From the judgment, defendant appeals.
Affirmed.
Robert C. Johnson, of Dallas, for appellant.
Ogden, Mosley & Foshee, of Dallas, for appellee.
This suit was instituted by appellee, Mrs. Viola J. Farmer, against appellant, D. H. Morrison, to enforce a trust and in the event such relief was denied for damages in the sum of $2,500 for the conversion of a house.
The case was tried to a jury on special issues resulting in a verdict for appellee upon which a judgment was rendered for appellee and appellant has perfected his appeal.
The record reveals that on or about September 12, 1946, appellee purchased a nine room house, in which she was then living, from Sears-Roebuck & Company of Dallas for a consideration of $400. She had occupied the house for six years prior to the purchase of it under a rental contract with the former owner when Sears-Roebuck & Company bought the lot together with the house and other improvements thereon in order to use the lot for building purposes. In order to get immediate possession of the premises from appellee, who was claiming her right to occupy the premises under the terms and provisions of a Government OPA regulation, Sears-Roebuck & Company contracted to sell the house to appellee for a consideration of $400 if she would move the same from the premises and give possession of the lot. The jury found the reasonable cash market value of the house to be $1,500 at the time of the sale and before it was moved from the lot purchased by Sears-Roebuck & Company.
The facts support the further findings of the jury to the effect that appellant entered into an oral agreement with appellee that he would purchase a lot for appellee in Dallas, pay for the same himself, move her house in question on the said lot, prepare the house for occupancy, all at his own expense and to deliver the improved premises to her for a total cost to her of not to exceed $5,700 plus ten per cent of the cost price which sum, according to the oral agreement between the parties, appellee bound herself to pay to appellant within a reasonable time out of the proceeds of a loan she would secure on the premises and improvements thereon. The jury further found the cost of moving the house and placing it in condition for occupancy was $4,600. The record further reveals that, although appellee paid cash out of her own funds for the purchase of the house, formal title to it was given through a bill of sale by mutual agreement to appellant. The record further reveals that appellant paid $2,150 for the lot agreeably selected by appellee and took title to the same in his own name; that appellant contends the cost price of the lot, the moving of the house and putting it in condition for occupancy, plus ten per cent of such total expenses amounted to $7,441, which sum he seeks to have appellee pay him before delivering the premises to her; that, although the evidence was conflicting, the jury found that appellant orally agreed with appellee that the total cost would not exceed $5,700 plus ten per cent of the same and the trial court rendered judgment directing appellant to execute and deliver to appellee a general warranty deed for the lot and improvements thereon free of liens, claims and encumbrances, upon the payment of the sum of $6,270 to him either by appellee or the loan company which makes the loan to her on the premises in question. The judgment likewise recites that it appears that appellee has secured a firm commitment from a loan company for the loan.
The evidence conclusively shows that by oral agreement of the parties appellant took formal title to appellee's house, bought the lot in question for appellee, moved the house on the lot, reconditioned the house to please appellee, and assisted her toward getting a loan to reimburse him when a controversy arose between them about the amount she owed him. Appellee contends that appellant agreed to do the job for a sum not to exceed $5,700 plus ten per cent of the cost price while appellant contends that no such limitation was mentioned in the oral agreement and that the cost of the job plus ten per cent of it amounted to $7,441. He proposed to deed the lot to appellee and deliver the premises to her if she would pay him the said sum.
As a result of this disagreement appellee filed this suit on January 3, 1947, alleging the details by reason of which she contended that appellant was holding the property in trust for her and that the title to it should be decreed to her "upon the securing by her of a valid first lien and the negotiation thereof so as to make the money available to defendant in such a sum as will compensate him in accordance with the provisions of said contract, all of which she is now ready, willing and able to do and perform." In the alternative she pleaded specific performance or the enforcement of an expressed trust. She further pleaded in the alternative constructive trust by reason of actual fraud, intended misrepresentations and concealments and unconscionable advantages on the part of the appellant. Finally she pleaded in the alternative conversion of her house by appellant for which she claimed damages. She further pleaded that, in any event, she had no adequate remedy at law for the enforcement of the trust and appealed to the court for the enforcement of her equitable rights in the matter.
Appellant correctly states in his supplemental brief that the trial court tried the case upon the theory of an expressed oral trust, submitted issues to the jury on that theory alone, and rendered its judgment for appellee on the expressed oral trust theory. Article 7425b — 7, Vernon's Annotated Civil Statutes, passed by the Forty-Eight Legislature in 1943 and amended by the acts of the Forty-Ninth Legislature in 1945, known as the Texas Trust Act, invalidated an expressed oral trust. Prior to the passing of such act an expressed parol trust could be created in land by an oral agreement but that act precludes such. Klein v. Sibley, Tex.Civ.App., 203 S.W.2d 239.
Appellee contends that, in case we hold that the Texas Trust Act precludes an expressed oral trust, she pleaded constructive trust in the alternative, proved constructive trust, which has support in the judgment. As previously stated by us, she pleaded constructive trust in the alternative by reason of fraud, misrepresentations and unconscionable advantages but the record does not reflect sufficient evidence introduced to support such a pleading and no issues were submitted to the jury by the trial court in support of such a pleading. Neither does the record support a plea of conversion...
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