Sparks v. Mince, 5118.

• Decision Date: 19 February 1940
• Docket Number: No. 5118.,5118.
• Citation: 138 S.W.2d 203
• Parties: SPARKS et al. v. MINCE.
• Court: Texas Court of Appeals

138 S.W.2d 203

SPARKS et al. v. MINCE.

No. 5118.

Court of Civil Appeals of Texas. Amarillo.

February 19, 1940.

Appeal from District Court, Floyd County; Alton B. Chapman, Judge.

Suit in trespass to try title by Carrie Mince against Mamie Sparks and others. From a judgment for the plaintiff, defendants appeal.

Reversed and remanded.

L. G. Mathews, of Floydada, for appellants.

H. D. Payne, of Fort Worth, for appellee.

STOKES, Justice.

This is a suit in trespass to try title filed by appellee, Carrie Mince, against appellants, Mamie Sparks and her husband, G. W. Sparks, and J. M. Mince and his wife, Mattie. J. D. Mince, the husband of appellee, died on November 22, 1929, and appellants, Mamie Sparks and J. M. Mince, together with E. C. Mince, who is not a party to this suit, are the only children of J. D. Mince and appellee. At the time of the death of J. D. Mince he and appellee owned as community property 177 acres of land in Floyd County, a residence and premises in Floydada, a one-half interest in a small stock of merchandise, and some $3,000 in cash. J. D. Mince died intestate and on the 17th of January, 1930, appellants, joined by E. C. Mince and his wife, who lived in California, executed and delivered to appellee a deed conveying to her the 177 acres of land, the town property, and all of their right, title and interest in and to the estate of the father, J. D. Mince, deceased, including property of every kind and character, whether real, personal or mixed. Sometime in 1938, the exact date not shown by the record, E. C. Mince returned from California and from conversations with him, appellants ascertained that he and his mother were contemplating the sale of the property, whereupon appellants executed, filed and caused to be placed upon record in the county clerk's office of Floyd County an affidavit to the effect that the deed which they had executed to their mother conveying their interest in the real and personal property of the estate of their father, while absolute upon its face, was, in reality, a trust agreement and that the real and true consideration for the deed was an agreement of their mother to the effect that she would use the money and personal property in the erection of a comfortable home on the land for her own use during her lifetime and that she would hold the property until her death when it should revert to the three children, viz., the appellants, Mamie Sparks and J. M. Mince, and their brother, E. C. Mince. It appears that this affidavit being of record, interfered with appellee in her negotiations for the sale of the land, whereupon she filed this suit.

Appellants answered by setting up the facts above detailed and sought a judgment decreeing and confirming the trust agreement and securing them in its execution.

The case was submitted to a jury upon a single special issue in which the jury found that at the time of the execution of the deed to appellee, she and the appellants entered into an agreement whereby she was to hold the real estate in trust for the appellants and E. C. Mince.

At the close of the testimony and before the case was submitted to the jury, appellee presented to the court a request for a peremptory instruction, which was overruled, and after the verdict was returned she presented a motion for a judgment in her favor non obstante veredicto. This latter motion was granted by the court and judgment rendered in favor of appellee, Mrs. Carrie Mince, to which appellants duly excepted and from which they have perfected an appeal.

The controlling issue in the case is presented by the assignments of error which complain of the action of the court in granting judgment in favor of appellee notwithstanding the verdict of the jury. It appears from the judgment rendered by the court that the basis of his action in granting appellee's motion for a judgment non obstante veredicto was the allegations in her motion to the effect that the purpose of the allegations and contentions of appellants was to ingraft upon the deed executed by them and E. C. Mince an express trust and there being no allegations of fraud, accident or mistake inducing the execution of the deed, and the alleged trust being anterior to its execution, appellants were not entitled to a judgment and, therefore, appellee's motion for a peremptory instruction should have been granted. A further ground, as indicated by the recitals in the judgment, is that if the contentions of appellants were sustained and an express trust ingrafted upon the deed, the result would be to change the effect of the deed executed by E. C. Mince, decreeing the same to be a trust in his favor, and this could not be done in the absence of E. C. Mince in some way becoming a party to the suit.

The action of the court in this respect is assigned as error and we think the assignments must be sustained. It has consistently been held by the courts of this state since an early day that the peculiar wording of our statute of frauds admits the imposition by parol evidence of an express parol trust upon a deed conveying land notwithstanding the fact...