Sims v. Duncan, 11753.

• Decision Date: 02 May 1946
• Docket Number: No. 11753.,11753.
• Citation: 195 S.W.2d 156
• Parties: SIMS v. DUNCAN et al.
• Court: Texas Court of Appeals

195 S.W.2d 156

SIMS v. DUNCAN et al.

No. 11753.

Court of Civil Appeals of Texas. Galveston.

May 2, 1946.

Rehearing Denied June 6, 1946.

Appeal from District Court, Harris County; William M. Holland, Judge.

Action in trespass to try title to parcel of land, and suit for affirmative equitable relief, by Minnie E. Sims against Dr. Clara K. Duncan and others. Defendants Boeckman filed a cross-complaint in trespass to try title. From a judgment peremptorily instructing a finding for defendants upon the main action and in favor of defendants Boeckman on their cross-action, plaintiff appeals.

Judgment affirmed.

Bailey P. Loftin, of Houston, for appellant.

Fred Much, of Houston, for appellees.

CODY, Justice.

This is an action in trespass to try title to a parcel of land described in appellant's petition, and a suit for affirmative equitable relief, brought by appellant against appellees. Appellees Boeckman filed a joint answer which contained special exceptions, a plea of not guilty, a general denial, pleas of the three, five and ten years statute of limitations, together with a plea of the four year statute of limitation against the specific performance of any alleged agreement to convey the property in question. By way of cross-action said appellees Boeckman sued appellant in trespass to try title to aforesaid property. Appellee Dr. Clara K. Duncan, a widow, filed a separate answer which was in all material respects similar to the aforesaid answer of her co-defendants, but she filed no cross-action.

At the conclusion of all the evidence, in response to motions, the court peremptorily instructed the jury to find for appellees upon the main action, and in favor of appellees Boeckman on their cross-action. Accordingly judgment was rendered that appellant take nothing by her suit, and that appellees Boeckman upon their cross-action recover from appellant the title and possession of the land in question, being Lot 33 in the W. L. Hill Subdivision of the Martin K. Snell Survey in Harris County, and which was described by metes and bounds in appellant's petition.

The substance of the petition upon which appellant went to trial was that she was suing appellee Dr. Clara K. Duncan as the sole heir of Charles H. Kocher, deceased. That said Kocher was the brother of Dr. Clara K. Duncan, and was a sickly man for years before his death. That appellant was an ignorant negro woman, who was first employed in 1920 by the mother of said Kocher to care for him as a servant. That the contract of employment provided that appellant should be paid a weekly wage of ten dollars, and should receive her board and that of her daughter, and that she should also receive a conveyance of a home.

That when the mother of the aforesaid Kocher died in the spring of 1922, his sister, appellee Dr. Clara K. Duncan, renewed and continued said contract of employment, inclusive of the promise to purchase appellant a home. That in April, 1922, Dr. Duncan notified appellant that she had purchased for her the promised home, which is the property here involved, and ordered her to move in and take possession of said property. That appellant did so in May, 1922. That thereafter Dr. Clara K. Duncan was not able to meet the deferred payments on the purchase price (which matured at the rate of fifty dollars a month), and with the consent of appellant applied her weekly wages thereon, and likewise with her consent sold thirty cows and two horses belonging to appellant, and applied the proceeds on the purchase price. That the total amount of the money so supplied and so applied was $12,599.50.

That the deed to the property was taken in the name of the said Charles Kocher, and it was explained to appellant by said Kocher and Dr. Duncan that the owner would not have conveyed the property to a negro, and that she should trust them and she would get the property. That they encouraged her to improve the place, which she did upon their representation that it was hers. That she planted trees and flowers and built walks on the place at a cost of $2,500. That Kocher was under the domination of his sister, Dr. Duncan, and told her that if his sister did not let him deed the land to her, appellant, he would will it to her. That she learned for the first time after Kocher died, December 31, 1943, that he had conveyed the property to appellees Boeckman in 1937, retaining a life estate therein. That appellee Mrs. Boeckman is the daughter of Dr. Duncan.

That the appellees Boeckman were not innocent purchasers for value, but knew all the facts. That the legal title was vested in Charles Kocher in trust for appellant.

Appellees by their special exceptions asserted that the allegations of appellant's petition failed to set forth the necessary elements of a parol trust on the one hand, and that said allegations sought to enforce a purported agreement in violation of the Statute of Frauds.

Appellant predicates her appeal upon six points which, for brevity, have been edited by us, and as so edited are:

1. The court erred in instructing a verdict against appellant, since she testified that she owned an equitable title to the land, and that Kocher only held the legal title in trust for her.

2. That appellant and the Boeckmans claimed title from a common source, so it was not necessary for appellant to prove title into herself from the sovereignty of the soil.

3. That appellant introduced evidence in support of her allegations that the Boeckmans were not purchasers in good faith for value and without notice.

4. That appellant pled, and introduced evidence of, a "parol resulting trust" in the land for her benefit.

5. That appellant testified and introduced evidence of a "parol resulting trust" for her benefit in the property, and that she brought suit within four years after learning that her trustee, Kocher, had conveyed the land to appellees Boeckman.

6. That R.C.S. Art. 3716 does not apply where a deceased person is shown to be a trustee, and the court erred in refusing to permit appellant to testify to conversations with Charles H. Kocher, deceased.

A peremptory instruction was given against appellant. Under the rule too well known to require citation of authority it is our duty in passing on the correctness of such action to determine whether there was any evidence legally sufficient to carry any claimed issue of fact to the jury, disregarding any evidence adduced in favor of appellees. And if upon an examination of the evidence it be determined there was sufficient evidence to present such an issue to the jury, it is necessary to remand the case for a new trial.

Applying such rule we find that there was evidence to the following effect:

That upon her mother's death Dr. Duncan employed appellant as a servant to care for Kocher for a weekly wage of ten dollars and board for herself and daughter, and the promise to buy her a home. That the property in question was conveyed to Charles H. Kocher, since deceased, by W. L. Hill by general warranty deed for the consideration of $3,300, of which sum a balance of $3,250 remained to be paid in monthly installments of fifty dollars, with interest at the rate of 8% per annum, payable semi-annually. To secure the deferred payments a vendor's lien was retained. That by general warranty deed dated December 17, 1937, the aforesaid Kocher, upon the consideration of ten dollars, and subject to the outstanding indebtedness then amounting to $2,638.76, conveyed the property to appellees Boeckman, and retained a life estate in the surface rights of the property. That appellees Boeckman were the daughter and son in law of Dr. Duncan.

That shortly prior to the date of said deed to Kocher, Dr. Duncan told appellant that she had bought the place she promised to convey to her if she would care for Kocher as a servant until he died. And Dr. Duncan instructed appellant to move out onto the property with Kocher to care for him there in the capacity of a servant. That appellant did as she was so instructed. That appellant knew the land had been conveyed to Kocher, but Dr. Duncan told her that she would see to it that she (appellant) would get it upon Kocher's death, and appellant trusted Dr. Duncan. That Dr. Duncan told her in the presence of the Boeckmans and certain other named persons that the place was hers (appellant's) and that she could place any improvements on it, as it was being paid out with her, appellant's, money. The evidence was sufficient to support an inference that appellant had planted an unspecified number of pecan trees that were 18 or 19 years old at the time of the trial, and other trees, and had constructed concrete walks on the place, but there was no evidence of the value of said improvements either at the time same were placed on the premises or at the time of the trial.

The deed from W. L. Hill to Charles H. Kocher, when introduced into the evidence, established as a presumption of law that he was the owner of the fee simple estate therein, subject to the vendor's lien. Clayton v. Ancell, 140 Tex....