Oury v. Saunders

• Decision Date: 13 May 1890
• Citation: 13 S.W. 1030
• Parties: OURY <I>et al.</I> <I>v.</I> SAUNDERS <I>et al.</I>
• Court: Texas Supreme Court

13 S.W. 1030

OURY et al.v.

SAUNDERS et al.

Supreme Court of Texas.

May 13, 1890.

Commissioners' decision. Appeal from district court, Guadalupe county.

Action by G. H. Oury and Lena M. Oury, his wife, formerly Lena M. Saunders, and Adam Saunders, against Malvina Saunders, Leander Saunders, and J. F. Gordon and his wife. Plaintiffs appeal.

W. E. Goodrich, for appellants.

COLLARD, J.

L. A. Saunders, a married man, and the head of a family, on January 1, 1856, bought the land in controversy at public sale, made by J. F. Gordon, executor of the will of A. M. Grinage, deceased, a deed being then executed to Saunders, reciting that the sale was made for the consideration of $926, to become due in 12 months. In October of the same year Saunders moved on the premises with his family. Not having the money to pay for the land when the note for the same became due, and having in his possession, in trust for the children of his first wife, Mrs. Gordon, wife of J. F. Gordon, Lena M. Saunders, (Mrs. Oury,) and Adam Saunders, as their property, two negroes, the same were sold by decree for partition, and on February 2, 1859, $933.33, the proceeds of the sale belonging to plaintiffs Lena and Adam, were applied to the payment of the land note by their father, and the balance due thereon was taken from the share of the proceeds of the sale belonging to Mrs. Gordon, all by agreement with the executor, J. F. Gordon, who was the husband of the Mrs. Gordon before named. The case seems to have been tried upon the idea that such payment in discharge of the vendor's lien note created a resulting trust in favor of the children whose money was so used, and vested in them the title to the land. This, it seems, cannot be. To constitute a resulting trust, the payment must be at the time of the purchase, and not subsequent thereto. 1 Lead. Cas. Eq. pt. 1, p. 337; 1 Perry, Trusts, § 133; Lacey v. Clements, 36 Tex. 661; Long v. Steiger, 8 Tex. 461. It is the transaction itself that gives rise to the trust. Saunders purchased the land in his own name and for himself, and at the time could not have contemplated the use of his children's property in paying for for it. The transaction in which the children's property was used was in paying off the vendor's lien note, not in the purchase of the land three years before. So it is to this transaction we must look to know their rights.

Were these children subrogated to the rights of the creditor, and should they be protected on that ground? It is a general rule that when persons are compelled to pay the debt of another, where they are obligated to pay it as a surety, when a junior mortgagee pays off a prior mortgage, or, having an interest in the property, discharges an incumbrance, subrogation will follow. Sheld. Subr. § 3. It is said by the same author that "the doctrine of subrogation is not applied for the mere stranger or volunteer who has paid the debt of another without any assignment or agreement for subrogation, without being under any legal obligation to make the payment, and without being compelled to do so for the preservation of any rights or property of his own." Such a payment would extinguish the debt. Id. §§ 240, 241. But the same authority adds that "one who pays a debt at the instance of the debtor, under such circumstances that it appears to have been contemplated by the parties that he should become entitled to the benefit of the security for the debt held by the creditor from the debtor, may, as against the debtor, be subrogated to the benefit of such security, and of the debt which he has discharged; and a party who has paid the debt at the request of the debtor, and under circumstances which would operate a fraud upon him if the debtor were afterwards allowed to insist that the security for the debt was discharged by his payment, may also be subrogated to the security as against that debtor." Id. § 247; 2 Lead. Cas. Eq. pt. 1, p. 287. At the time Saunders paid the note, Mrs. Gordon was a married woman, 19 years old; Lena M. Saunders was 17 years old, and unmarried; and Adam Saunders about 15 years old. Neither of them was consulted about the application of their money to the payment of the note. It was done by their father, with the concurrence of Gordon, who accepted the payment. Saunders always, up to his death, declared he was not claiming the land as his own, but for plaintiffs. The note was taken up with the proceeds of the sale of the negroes, by his consent, of course, because he caused it to be done, and it was done under such circumstances as would amount to a fraud upon plaintiffs if they should not be subrogated, as against him, to the creditor's right of lien on the land. Plaintiffs were not volunteers in the payment of the note. It was paid under such circumstances as would lead to the belief that it was the intention of Saunders at the time to fully protect them. It would be a fraud against them if an obligation could not be implied on his part to subrogate them at least to the debt and lien. His acknowledgment of his obligation to them is forcibly expressed by the deed he made to them in discharge of the same, made one year and ten months after the transaction; and this was done after he had procured a deed for a nominal consideration from the Grinage heirs. He entered upon the land incumbered with the vendor's lien given the executor Gordon, to which his children were subrogated. The whole of the land was subject to the lien in their hands. If the Grinage heirs had any interest in the land, it is not shown that he was ignorant of it, and, in addition to this, he bought from the executor such title as he could...