Scottish-American Mortg. Co. v. Massie

• Decision Date: 28 January 1901
• Citation: 60 S.W. 544
• Parties: SCOTTISH-AMERICAN MORTG. CO., Limited, v. MASSIE et al.
• Court: Texas Supreme Court

60 S.W. 544

SCOTTISH-AMERICAN MORTG. CO., Limited, v. MASSIE et al.

Supreme Court of Texas.

January 28, 1901.

Error from court of civil appeals of Second supreme judicial district.

Action by Anna Massie and others against the Scottish-American Mortgage Company, Limited. A judgment for plaintiffs was affirmed by the court of civil appeals, and defendant brings error. Reversed and rendered.

Gano, Gano & Gano, for plaintiff in error. Greene & Stewart, for defendants in error.

GAINES, C. J.

This was an action of trespass to try title brought by Anna Massie, joined by her husband, and Fannie Pepper, a feme sole, to recover of the Scottish-American Mortgage Company, Limited, an undivided one-fourth interest in certain lands described in the petition. They recovered a judgment, which was affirmed upon appeal. The father of the plaintiffs died while they were infants of tender years, and their mother subsequently married W. A. Garner. The mother, being possessed of the sum of $4,000 as her separate property, delivered the money to her husband, to be invested for the use and benefit of her two minor daughters, under the terms of the following contract entered into between her and her husband: "Contract and agreement made and entered into between W. A. Garner and Lillie H. Garner, his wife, witnesseth: That whereas the said Lillie H. Garner owns and is possessed of the sum of four thousand dollars in money, said money being her separate property, having been acquired by her before marriage with the said W. A. Garner; and whereas, she, the said Lillie H. Garner, desires to have said money used and invested in such manner that the same, and the proceeds and the profits thereof, shall accrue to the exclusive benefit of her children, Anna Pepper and Fannie Pepper; and whereas, the said W. A. Garner agrees and is willing that said money shall be so invested, and the proceeds and profits thereof shall vest in said children: Now, therefore, in consideration of the premises, the said Lillie H. Garner does by these presents make, constitute, and appoint the said W. A. Garner the trustee of said money for the purpose hereinbefore mentioned, and does hereby set over, transfer, and deliver to him the said sum of four thousand dollars, to be held, used, and invested by him in such manner and at such times as he, in his discretion, may see proper, but to be in trust for the benefit of the said children; and the said W. A. Garner, on his part, accepts the said trust, hereby acknowledging the receipt of said money, and agrees and binds himself that he will faithfully use, invest, and handle said money to the best advantage, according to his ability, and that the proceeds and profits arising from the same shall accrue to the said children of the said Lillie H., and that the increase or profits arising from any investment of said money shall belong to said children, and that he will reinvest such increase or profits for their benefit. Witness our hands this 2nd day of November, A. D. 1882. [Signed] W. A. Garner. Lillie H. Garner." The instrument was duly acknowledged by the wife in the mode required by our statutes in order to convey the separate property of a married woman. Garner invested the money in the property in controversy, taking a deed to himself "as trustee for Anna Pepper and Fannie Pepper," who were then minors; and before the marriage of Mrs. Massie, and during the minority of both, he conveyed the land so bought to the Brazos Land & Cattle Company, whose title the plaintiff in error now has.

The...