Puente v. Mata, 13741

• Decision Date: 26 April 1961
• Docket Number: No. 13741,13741
• Citation: 346 S.W.2d 643
• Parties: Jesus PUENTE, Appellant, v. Perfecto MATA, Appellee.
• Court: Texas Court of Appeals

Page 643

346 S.W.2d 643

Jesus PUENTE, Appellant, v. Perfecto MATA, Appellee.

No. 13741.

Court of Civil Appeals of Texas, San Antonio.

April 26, 1961.

Rehearing Denied May 24, 1961.

Polk Hornaday, Harlingen, for appellant

Johnson, Hester, Jenkins & Toscano, F. W. Moran, Harlingen, for appellee.

BARROW, Justice.

This suit was brought by appellant, Jesus Puente, against appellee, Perfecto Mata, seeking an adjudication that appellee owns no interest in Lot No. 22, Block No. 62, Original Townsite of Harlingen in Cameron County, Texas. Appellee filed an answer and cross-action, alleging that while the record title was taken in the name of appellant, appellee, by virtue of an agreement between appellant and himself, it was the property of both said parties and was held in trust by appellant for appellee to the extent of his one-half interest therein. In said cross-action appellee made appellant's wife, Santiaga Mata de Puente, a party to the suit. The case was tried to a jury, and after a jury verdict on special issues favorable to appellee, the court rendered judgment adjudging the property to be the property of appellant and appellee. The court further found the property was not capable of partition in kind and ordered the property sold and the proceeds divided equally between the parties. Appellant will be referred to as Puente, appellant's wife as Mrs. Puente, and appellee as Mata.

The record shows that all of the parties are Mexican aliens residing lawfully in the United States. They all came to this country about the year 1923. Puente's wife is a sister of Mata. About January, 1927, the property in dispute was conveyed by one Osco Morriso to Puente. The next day Puente conveyed the property to Mrs. Puente. At the time of the purchase of the property there existed an outstanding lien against it. This lien was later foreclosed in the District Court of Cameron County and the property was sold at Sheriff's Sale. Wright Estates, Inc., became the purchaser at such sale. After two different attempts by suit to set aside the foreclosure and sale, on May 6, 1935, the property was repurchased from said Wright Estate for a consideration of $200. Title was taken in the name of Puente. A payment of $20 in cash was made and a note was executed by Puente for the balance, payable in installments. The note was paid off.

Appellant, Puente, seeks a reversal of the judgment upon eighteen points. We shall consider these points in the order presented. By the first ten points Puente contends that the court erred in refusing to sustain exceptions to the answer and cross-action of Mata. The points are overruled. The facts with reference to the agreement between the parties and their actions with reference to the property in keeping with such agreement were fully alleged. We have examined Mata's pleadings in the light of Puente's exceptions and fail to find any indication of surprise suffered by Puente. We have examined the record as a whole and find no indication that any paucity or impropriety of pleading was calculated to cause and probably did cause any injury to Puente in the conduct of the case or the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure; Miller v. Watson, Tex.Civ.App., 257 S.W.2d 839; Brandtjen & Kluge v. Hughes, Tex.Civ.App., 236 S.W.2d 180; Quinn v. Wilkerson, Tex.Civ.App., 195 S.W.2d 399.

By point number eleven Puente contends that the court erred in overruling his motion for a directed verdict because the proof of a parol trust in this case is not such clear, satisfactory and convincing proof as is required by law. By point number thirteen appellant contends that the judgment establishing such parol trust is contrary to law for the same reason. And by point number fourteen he urges that the court erred in overruling his motion for judgment notwithstanding the verdict, for the same reason.

Mata testified that he paid his one-half of the original purchase price of the lot when it was purchased in January, 1927, and that when the lot was repurchased in 1935, he again paid one-half of the cost price. He further testified fully and completely as to the parol agreement that the lot was purchased as the property of Puente and himself and was to belong to both of them. He further testified that he and his mother, and Puente and his wife, as well as...