Stone v. Stitt
| Decision Date | 29 October 1910 |
| Citation | 132 S.W. 862 |
| Parties | STONE et al. v. STITT. |
| Court | Texas Court of Appeals |
Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
Action by J. W. Stitt, trustee in bankruptcy of Will H. Stone, against Sallie Stone and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.
Barcus & North and W. R. McGill, for appellants. J. W. Stitt, trustee.
This suit was instituted by J. W. Stitt, as trustee in bankruptcy of Will H. Stone, to set aside a deed made by the latter to his mother, Mrs. Sallie Stone, on the 14th day of March, 1903, conveying certain lots in the town of Hereford. Appellee alleged that the transfer was fraudulent, in that it had been made with intent to defraud the creditors of the said Will H. Stone, and he prayed for cancellation of the conveyance. A more complete statement may be found in the opinions on two former appeals in this case. See 47 Tex. Civ. App. 93, 103 S. W. 1192, and 121 S. W. 187.
On the last trial Mrs. Sallie Stone pleaded, among other things, that the lots in controversy had been purchased with her separate money; that they were and ever had been of right her property, although the deeds had been taken in the name of Will H. Stone; that, as soon as she ascertained the fact that the title stood in the name of Will H. Stone, she procured the execution of the conveyance in controversy in discharge of the trust under which Will H. Stone had held the legal title. By a second trial amendment filed after the case had gone to trial, appellee specially pleaded that "during the time the title was still in the name of Will H. Stone the said Will H. Stone was engaged in the mercantile business in the city of Hereford, and the claims of creditors represented by plaintiff were contracted on the credit and financial standing of the said Will H. Stone; that the said Sallie Stone should not be heard on her plea of resulting trust, because plaintiff says that if, as alleged by her, the said lots were purchased and paid for by her out of her separate means, that she had full knowledge and notice of the record and legal title standing in the name of said Will H. Stone and suffered and permitted this condition of the title to remain unchanged; that said W. H. Stone was thereby permitted and enabled to represent to his creditors, and did represent to them, that the said property is owned by him, whereby he obtained large sums of credit, and the defendant Sallie Stone is now estopped from asserting in her said second amended answer her claims of resulting trust." The case was tried before a jury and resulted in a verdict and judgment in appellee's favor canceling the deed mentioned, and investing the title to the property in appellee.
We regret that we have found ourselves unable to terminate the long-continued litigation between the parties to this suit, but, as desirable as it may be that this shall be done, we think we must again reverse the judgment. On the issue of estoppel above noted, the court permitted appellee over the objection of appellants to read in evidence a written statement made by Will H. Stone on November 6, 1902, to the Tootle, Wheeler & Motter Mercantile Company. The statement was made as a basis of credit and included references relating to the lots in controversy in this suit, and the court thus submitted the issue: "(12) If you find and believe from the evidence that if Sallie Stone furnished the money to purchase the lots in question in this case, and that the conveyances were made to Will H. Stone, he would be deemed in law to hold said property in trust for said Sallie Stone, but, if Sallie Stone knew that said property had been conveyed to W. H. Stone, and if while said property was in the name of W. H. Stone he used said property as a basis of credit and represented to his creditors, who are represented by the plaintiff in this case, that he was the owner of said property, and that...
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