Parker v. Beavers
| Decision Date | 01 January 1857 |
| Citation | 19 Tex. 406 |
| Parties | PARKER v. BEAVERS, ADM'R. |
| Court | Texas Supreme Court |
In this case the court waived the decision of the question whether a deed of gift could be shown by parol to have been made in trust for the donor.
In causes in equity, where the trial is by jury, evidence which would be considered too vague and uncertain to entitle a party to relief on a hearing before a chancellor should be excluded.
There is no principle of law more clearly settled than that a complainant in a court of equity, as well as law, must recover, if at all, upon the identical case on which he has based his right to a recovery in stating his cause of action. [3 Tex. 305;12 Tex. 327;21 Tex. 508;25 Tex. 271.]
Where the petition seeks to establish that an absolute deed of gift was upon trust and confidence for the benefit of the donor, evidence is not admissible on the part of the plaintiff to prove mistake, that is, that the deed was not in the form and terms which the parties intended, and that they in fact intended it to have been a deed of trust, and not a deed of gift.
Appeal from Houston. By mistake a wrong transcript was furnished to the reporters in this case; and we are unable, therefore, to give a statement of the case. The following partial statement is taken from the brief of the counsel for appellee:
The suit was commenced by the appellant to recover twelve thousand four hundred dollars, which in his petition he alleged that appellee's intestate had collected for him as his attorney in fact in September, 1853, from C. W. Lee, appellant's former guardian, a claim for which, duly verified, had been presented to the appellee and rejected by him. Before appellee filed his answer, appellant filed an amended petition, in which he alleged that on the 20th of January, 1854, being about to start to California, and having at that time in the hands of Lee, his guardian up to his majority, and Byrd, his attorney, both of Alabama, the sum of eight thousand dollars, a part of said $12,400, and desiring that the same should be looked after and collected for him, he did on said day make and execute to his brother (appellant's intestate) a deed of gift, which, although absolute upon its face, was intended, agreed and understood between him and his said brother as a trust, the money to be collected by his said brother for his (petitioner's) own use and benefit, and for no other use and purpose whatever; and that said sum was collected under said trust, with a prayer for payment of said other and remaining sum of $4,400; and that said deed of gift, a copy of which was made a part of the petition, should be declared a trust, and that said $8,000 be paid.
Appellee filed exceptions: 1st. That the amended petition was for a different cause of action. 2d. The sum was not verified by affidavit and presented to the administrator before suit. 3d. A general exception; and answered by a general denial, and that he had fully accounted, etc.; and at a subsequent term filed amended answers, claiming set-offs, payments, etc., which, under the judgment, it is unnecessary particularly to refer to. Defendant's exceptions being overruled upon the trial, there was a verdict and judgment for the defendant, a motion for a new trial by the plaintiff, which being overruled he appealed. It appears from the record that the plaintiff is a reckless, dissipated and improvident young man, who, upon arriving at his majority in the summer of 1858, constituted his brother, the defendant's intestate, his attorney in fact to go to the state of Alabama and receive his property from his guardian, which his brother did, and in September received from said guardian some ten or twelve negroes and about eight or nine thousand dollars in money and notes, which last he placed in the hands of an attorney for collection on his (intestate's) own account, and brought the negroes (and mules, wagon, etc., which he had bought for plaintiff) to this state and delivered the same to plaintiff in November, who run through with the same before the 1st of the next January. It also appears that the plaintiff had intermarried with the daughter of one Shields by a negro woman, and that Shields had settled seven negroes on one Chambers for the benefit of said half breed, with authority to Chambers, if she should marry some one that he thought worthy, to convey the negroes to him; and about January, 1854, Chambers (upon an agreement with the parties) had conveyed the negroes to the plaintiff and he had conveyed them in trust to his brother. Also on the 20th of January, 1854, plaintiff executed the deed of gift described in the petition.
Yoakum & Taylor, for appellant.
G. F. Moore, for appellee.
It is not necessary to express any opinion on the question (which has been argued at length and with much ability by counsel for the...
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