Small v. Brooks

• Citation: 163 S.W.2d 236
• Decision Date: 27 May 1942
• Docket Number: No. 9121.,9121.
• Parties: SMALL v. BROOKS et al.
• Court: Texas Court of Appeals

163 S.W.2d 236

SMALL v. BROOKS et al.

No. 9121.

Court of Civil Appeals of Texas. Austin.

May 27, 1942.

Rehearings Denied June 17, 1942.

Appeal from District Court, Coleman County; E. J. Miller, Judge.

Action by Lillie Small against Annie May Brooks and husband in trespass to try title, for rent, to set aside a deed, to recover land, to establish a claim for money, and to foreclose an asserted lien securing the claim against other land, to establish a money debt if denied recovery of the land, and to establish and foreclose a subrogation lien against the land as securing the latter claim. From the judgment after denial of plaintiff's motion for judgment non obstante veredicto, all parties appeal in part.

Reversed and rendered in part and affirmed in part.

Dibrell & Snodgrass, of Coleman, Grady L. Fox, of Amarillo, and Sam Montgomery, of Tulsa, Okl., for appellant.

Baker & Baker and E. M. Critz, all of Coleman, for appellees.

BAUGH, Justice.

Appellant sued appellees in trespass to try title to 1,280 acres of land in McCulloch County, for $1,920 rentals thereon and to set aside a deed she had made in 1923 to Annie May Brooks, her daughter. Also to recover 1,280 acres of land in Coleman County to establish a claim for $1,537.04 and foreclose an asserted lien securing it against other lands in Coleman County; and in the alternative, if denied a recovery of the Coleman County lands, to establish a debt against appellees for $13,412.43, with accrued interest, and to establish and foreclose a subrogation lien in her favor against the 1,280 acres in Coleman, as securing the latter claim. Trial was to a jury on special issues, all of which were answered in favor of appellant. The trial court rendered judgment in favor of appellant for the McCulloch County lands, but denied her recovery of the rentals sued for on these lands; and denied her any recovery as to the Coleman County lands, or on either of her claims with reference thereto. Mrs. Small appealed from so much of said judgment as was rendered against her; and Annie May Brooks and husband, Joe Z. Brooks, have appealed from the portion of the judgment in favor of Mrs. Small and against them.

We consider first the McCulloch County lands, as to recovery of which by Mrs. Small, Annie May and Joe Z. Brooks are appellants; but as to the issue of rents therefrom Mrs. Small is appellant. The issue of title, the deed to Annie May Brooks being absolute on its face for a recited consideration of $10 and love and affection, depends upon whether a parol trust resulted. Annie May Brooks urges as applicable the rule that parol evidence is not admissible to contradict the express terms of a deed; and that a conveyance for a recited consideration of "love and affection" is presumptively a gift. These rules are well settled by numerous authorities; but it is equally well settled that regardless of such recitals a trust may be engrafted upon a deed by parol evidence. See 42 Tex.Jur., § 70, p. 681, and numerous cases there cited.

Annie May Brooks next contends that regardless of the jury findings, Mrs. Small wholly failed to establish a parol trust by the quantum of proof required by law in such cases, citing numerous cases and the rule deduced from such cases in 42 Tex.Jur., § 76, p. 687, that "the evidence must be clear, satisfactory and convincing." On this question we have read carefully the statement of facts. In the main, it presents conflicting testimony. The testimony of Mrs. Small on a former trial, introduced to impeach her testimony on the trial here appealed from, presents some inconsistencies, contradictions, and uncertainties. This was largely due to the fact that she had made to her daughter so many conveyances of different lands at different times over a period of some 25 or 30 years, most of which were outright gifts, and had become confused with reference to some of them. Her testimony, however, that Sections 50 and 51 in McCulloch County were not intended as gifts, but were conveyed upon the agreement of Annie May and Joe Z. Brooks that they would reconvey same to her upon demand, was consistent throughout. Likewise that since the conveyance in 1923 she had continuously paid all taxes on these lands and had collected the rents therefrom. In this she was in part at least corroborated by Annie May and Joe Z. Brooks themselves. In addition to this testimony, we find in the statement of facts an express stipulation "by and between all of the parties hereto" that on July 25, 1934, eleven years after said conveyance which the grantees insist was an outright gift from Mrs. Small, Annie May and Joe Z. Brooks gave to the Federal Land Bank a deed of trust, to secure a loan made to them, on "Surveys 1315, 1316, 1317 and 1318, owned in fee by the said Annie May Brooks, and the said Surveys 50 and 51, which were held in trust by the said Annie May Brooks for the benefit of this plaintiff." (Italics ours.) The trust was therefore admitted, regardless of other testimony, to have existed in 1934; and said agreement likewise removes any question of adverse possession of said lands by the grantees up to that time. It was further shown that rents from these two sections for 1934 were deposited in the bank by Joe Z. Brooks to the credit of Mrs. Small; that in 1934 the taxes on said lands were paid by checks drawn on Mrs. Small by Annie May; and that in 1936 Mrs. Small paid the taxes which the Brooks had let go delinquent in 1935 on these lands. The original petition in this suit was filed October 27, 1937. The foregoing facts, together with the...