Parrish v. Looney, 4353.

• Decision Date: 18 April 1946
• Docket Number: No. 4353.,4353.
• Citation: 194 S.W.2d 419
• Parties: PARRISH et al. v. LOONEY et al.
• Court: Texas Court of Appeals

Page 419

194 S.W.2d 419

PARRISH et al. v. LOONEY et al.

No. 4353.

Court of Civil Appeals of Texas.

April 18, 1946.

Appeal from District Court, Nacogdoches County; H. T. Brown, Judge.

Action by Nancy T. Parrish and others against R. H. Looney, the Gravel Ridge School Community No. 22, of Nacogdoches County, the Gravel Ridge Missionary Baptist Church and others to recover title and possession of certain realty and to recover the value of timber cut and removed from part of the realty and for other relief. From a judgment denying plaintiffs any relief, the plaintiffs appeal, and defendants cross-assign error.

Judgment affirmed.

P. A. Sanders, of Nacogdoches, for appellants.

H. L. Edwards, of Nacogdoches, for appellees.

WALKER, Justice.

Appellants, excepting one person, are heirs of one William Rogers. They brought this action against various defendants, including Gravel Ridge School Community No. 22, of Nacogdoches County, and Gravel Ridge Missionary Baptist Church, to recover title and possession of a tract of approximately 9½ acres out of the Elizabeth Rusk Survey in the said county. They also prayed recovery of the value of certain timber cut and removed from a part of this land, and for other relief which need not be identified in detail.

The tract of land for which appellants sue was conveyed to the said William Rogers by Mary Joiner et al., acting by and through one George F. Ingraham, attorney in fact, by a deed dated November 18, 1890. Since the disposition of this appeal depends upon the construction of this instrument, we quote it, omitting only the description of the land:

                "The State of Texas   |  Know All Men by
                                       &gt
                County of Nacogdoches |     These Presents
                

"That we, Mary Joiner, Robert Joiner and Ella Harrison and her husband, J. L. Harrison, all acting by our duly appointed and authorized attorney in fact, Geo. F. Ingraham of said County for and in consideration of Sixteen Dollars to us paid, the receipt of which is hereby acknowledged have this day bargained, sold released and conveyed and by these presents do bargain sell release and convey unto William Rogers of the County of Nacogdoches, State of Texas, the following described real estate, to-wit: * * *

"To Have And To Hold The Above described premises together with all and singular the rights and appurtenances thereto in anywise belonging unto the said William Rogers, his heirs and assigns forever in Trust the three acres of South end of said Block of land for the use and benefit of Gravel Ridge School Community Number Twenty Two of Nacogdoches County, Texas, and its successors forever the Eight and one half acres of the North end of said block of land for the use and benefit of Gravel Ridge Missionary Baptist Church, of said County and State and its successors forever. And we do hereby bind ourselves our heirs executors and administrators to warrant and forever defend all and singular the said premises unto the said William Rogers his heirs and assigns for the use and benefit of the Gravel Ridge School Community No. 22 of said County and State and said Gravel Ridge Church also of said County and State, as before herein expressed against every person whomsoever lawfully claiming or to claim the same or any part thereof, by through or under us.

"Witness our hands this 18th day of November, A.D. 1890.

                                     "Robert Joiner
                                     "Mary Joiner
                                     "Ella Harrison and
                                     "J. L. Harrison
                "Signed in presence     By their Attorney-in-Fact
                   of
                "__________             Geo. F. Ingrahan
                

Approximately two acres out of the part of this tract conveyed in trust for the church has been devoted to cemetery purposes, and appellants have in effect disclaimed any proprietary interest in this cemetery; they sue for the balance of the tract conveyed to their ancestor.

The cause was tried to the court, sitting without a jury; and judgment was rendered denying appellants any relief. This judgment also declared and fixed a trust upon the title conveyed to William Rogers in the following language: "Therefore it is the order and judgment of the court that the title to the hereinafter described land is in William Rogers, his heirs and assigns, in trust for the use and benefit of defendants Gravel Ridge School Community No. 22, of Nacogdoches County, Texas, and its successors forever, and Gravel Ridge Missionary Baptist Church and its successors forever." The trial court filed findings of fact, and therein found that the School Community had been succeeded by an existing Common School District, to-wit, Harmony Common School District No. 15 of Nacogdoches County, but that the Church was still in existence. The appellants have made some question about the finding respecting the existence of the Church, but there is sufficient evidence in the record to support this finding; the fact that some of the appellants are members of the organization does not effect the matter. It also appears from the findings that when the aforesaid deed was made to William Rogers, the School Community and Church were using the land, and that they continued to do so afterwards. No school has been conducted on the land since 1936; the school conducted by the successor Common School District, namely, Harmony, is apparently located some miles distant from the land involved here. The trial court expressly found that the land had never been abandoned by the Church, and we think there is some evidence to sustain this finding, although, as will appear, said finding is immaterial.

The trial court's judgment obviously represents that court's construction of the deed from Mary Joiner et al. to William Rogers, and we agree with that construction. The instrument is not ambiguous; it conveyed title in fee simple to the said William Rogers, to be held by him in trust for the named beneficiary organizations and their successors. No intention appears therefrom to vest any personal interest in the trustee, that is, an interest not held in trust by him, and the title of the beneficiaries is not conditional. These matters will be more fully discussed in connection with appellants' Points of Error.

Under Points 1, 2 and 3, appellants say that the trial court erred in charging a trust upon the title conveyed to William Rogers because the said Rogers paid the purchase price of this land out of his own funds. They construe the deed from Mary Joiner et al. as vesting fee title in William Rogers, subject only to use of the land for school and church purposes, and say that when this use terminated, the title either reverted to or vested in full in William Rogers or appellants, or else authorized re-entry by them; and that the use referred to has in fact terminated.

Points 1, 2 and 3 are overruled. And, first, respecting the payment of the purchase price of the land: The deed hereinbefore quoted recites a consideration of $16. Appellants say, as we reconstruct their argument, that the burden of proving the existence of a trust is upon him who asserts it; that an element of this proof is a showing that the person asserting the trust paid the consideration involved; and that no trust was proven here because the evidence shows that William Rogers, and not the Church or School Community, paid the purchase price of the land. The contention is denied. The trial court's findings do not show who paid the purchase price of the land; and we doubt whether there is any competent evidence in the record as to who paid it. The only evidence on this matter appears in the testimony of Mrs. Nancy Parrish, one of appellants and a daughter of William Rogers; and her testimony seems to be nothing except the repetition of statements made to her by her father or by other members of her family at some time or times not identified. So far as this record shows, nobody except the School and Church ever had any possession of this land; and under appellants' theory of the case Mrs. Parrish's testimony appears to be nothing but hearsay repetition of self-serving declarations. See Gilbert v. Odum, 69 Tex. 670, 7 S.W. 510; Warren v. Humphreys, Tex.Civ.App., 274 S.W. 250; Brightwell v. Scott, Tex.Civ.App., 111 S. W.2d 739; Watson v. Watson, Tex.Civ. App., 28 S.W.2d 1100. However, if it be true that William Rogers did pay the purchase price of the land out of his own funds, that fact alone does not affect the rights of the parties here, because the rights of the School Community, the Church, and the successors of those organizations are established by the face of the deed to the said William Rogers, and that instrument declares an express trust in their favor. The rights of the beneficiaries depend upon an express trust, not upon a resulting trust; and it seems to be a doctrine respecting resulting trusts to which appellants have referred. It is not necessary for the beneficiary of an express trust to prove the payment by him of any part of any consideration paid for land conveyed in trust for him. In Holmes v. Tennant, Tex.Com.App., 231 S.W. 313, at page 316, the court said: "If Lee held the title entirely for convenience, it cannot be assumed that the trust, if any, under which Tennant held, was a resulting trust. It was not...