Neyland v. Bendy

• Decision Date: 07 February 1888
• Citation: 7 S.W. 497
• Parties: NEYLAND v. BENDY.
• Court: Texas Supreme Court

7 S.W. 497

NEYLAND v. BENDY.

Supreme Court of Texas.

February 7, 1888.

Commissioners' decision. Error from district court, Tyler county; W. H. FORD, Judge.

This suit was brought on the 12th day of December, 1884, by defendant in error, H. W. Bendy, against William Neyland, his father-in-law, for the purpose of declaring a deed, absolute on its face, executed by Bendy to Neyland, on 30th day of December, 1875, for the recited consideration of $1,800, to be in trust for the said Bendy. The deed contained a special warranty, purported to convey all lands inherited from his deceased mother, and all other lands owned by him in Texas, and was recorded in Tyler county on January 31, 1876. It was alleged in the petition that William Neyland was invested with the apparent ownership of the lands for the purpose of enabling him to effect a partition of the estate of H. W. Bendy, Sr., and his deceased wife, to the extent of the interest of the grantor, and that, after the said Neyland should procure the partition, it was understood that, after reimbursing himself out of the property for all trouble and expense incurred, the said Neyland should reconvey the residue to plaintiff. It was also alleged that in April, 1876, plaintiff purchased of defendant 300 acres of land, and that defendant was to sell enough of plaintiff's land to pay himself for the same, as well as for the trouble and expense that he had been or might be at in effecting a partition of plaintiff's mother's estate. It was further averred that partition had been effected of said estate, and that defendant had sold enough of the lands of plaintiff to pay off all charges and indebtedness that had accrued to the defendant by reason of the premises. And it was further alleged that defendant held the unsold lands in trust for plaintiff until 30th of December, 1883, when he repudiated his trust, and, upon being requested, refused to convey said lands to plaintiff. Defendant pleaded a general denial; that the deed was bona fide; that the $1,800, recited as being paid, was actually paid, and was a fair price for the land at that time; also five-years limitation, and an outstanding title. Verdict and judgment for plaintiff. The errors insisted on are as follows: "(12 and 22.) The court erred in not charging as to the outstanding title, and in overruling defendant's motion for a new trial, because the testimony showed a superior outstanding title. (4) The court erred in charging the jury, on the defendant's plea of limitation, as follows: `Where one person holds lands in trust for another, by deed from such other person, the statute of limitations will not begin to run in his favor, as against the person for whom he is holding such land in trust, so as to bar a recovery by such person for whom he is so holding in trust, unless and until the party so holding such land in trust, by deed from such other person, has repudiated such trust by making known to such other, for whom he is so holding such land in trust, that he has repudiated such trust, and is claiming no longer to act or consider himself as acting or standing in the relation or capacity of trustee for such other person and about such lands, but claims to be the owner of such lands, under and by virtue of such deed,' — and in further charging the jury to find for the plaintiff if they find the deed was a trust, `unless you are further satisfied, and believe from the evidence, that at some time as long ago as five years next before the filing of the original petition in this case, to-wit, the 12th day of December, 1884, the defendant made known to the plaintiff the fact that he looked upon and considered the said deed of 30th of December, 1875, an absolute deed and a bona fide deed to the said lands, and that he did not intend to reconvey them back, but claimed the same as his own, under said deed; and that he, the defendant, has ever since said date, to-wit, five years next before 12th day of December, 1884, had, under deeds duly registered, peaceable, adverse, and exclusive possession of said lands, cultivating, using, or occupying the same, in person or by tenants, and paying all taxes thereon.' (8) The court erred in overruling defendant's motion to suppress the deposition of plaintiff's witness Mrs. Emma Newton, and permitting the plaintiff to read her answers to the jury. (7) The court erred in refusing to give the special charge asked by defendant, as follows: `In order to make a deed of trust out of a deed absolute on its face, or to ingraft a parol trust on such absolute deed, it requires the clearest and most positive proof of such fact; and unless plaintiff has made such proof you will find for defendant.'" Second proposition under eighth assignment, which is the only one now insisted upon, the first having been withdrawn, as being founded upon a misapprehension of the facts, is as follows: "The deposition should have been suppressed, because the direct interrogatories were leading."

Burnett & Hanscom, for plaintiff in error. T. W. Ford, for defendant in error.

MALTBIE, J., (after stating the facts as above.)

On the 30th day of December, 1875, H. W. Bendy, the defendant in error, who was the plaintiff below, made a deed to William Neyland, plaintiff in error, the father-in-law of Bendy, purporting to convey all the lands inherited by Bendy from his deceased mother, and all other lands owned by him in Texas, upon the recited consideration of $1,800 paid. The question presented by the record for determination is whether it was intended by the parties that the deed should operate as an absolute conveyance of the land, as it purports to do, or whether it was intended that Neyland should hold the land in trust for Bendy. The jury found that it was to be held in trust; and the evidence, though conflicting, supports the verdict. And whether the judgment should be reversed depends upon the rulings of the court.

The first and second assignments of error assert the proposition that the evidence showed an outstanding title superior to that of the plaintiff, and that the court erred in not giving it in charge to the jury. The defendant entered upon the land by virtue of a deed executed by the plaintiff upon the express agreement that whenever defendant should sell enough to reimburse himself out of the proceeds for effecting a partition with other parties, and to pay a debt owing him, that he would reconvey the residue to the plaintiff. Defendant had realized sufficient funds for this purpose from the sale of a portion of the land prior to the beginning of this suit. It is said that "under no circumstances can a trustee claim or set up a claim to trust property...