Sullivan v. Fant

• Decision Date: 04 June 1913
• Parties: SULLIVAN v. FANT et al.
• Court: Texas Court of Appeals

160 S.W. 612

SULLIVAN v. FANT et al.

Court of Civil Appeals of Texas. San Antonio.

June 4, 1913.

Appellants' Motion for Additional Conclusions of Fact and Law October 22, 1913.

Rehearing Denied November 19, 1913.

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Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by D. J. Sullivan against D. R. Fant and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Denman, Franklin & McGown, D. B. Chapin, and Clark & Bliss, all of San Antonio, for appellant. G. R. Scott and Boone & Pope, all of Corpus Christi, and Ball & Seeligson and Chas. W. Truehart, all of San Antonio, for appellees.

MOURSUND, J.

We adopt appellant's statement of the nature of the pleadings filed:

"This is a suit in trespass to try title that was brought by appellant against appellees in the district court of Hidalgo county, Tex., and afterwards transferred by agreement of parties to the district court of Bexar county for the Forty-Fifth judicial district, in which appellant seeks to recover of appellees the title and possession of a tract of land situated in Hidalgo county, Tex., called the Tio Ayala grant, containing over four leagues of land. The suit was filed in the district court of Hidalgo county, Tex., June 14, 1909. Appellees pleaded not guilty, the statutes of limitations of three, five, and ten years, a special plea of res adjudicata, and a further special plea to the effect that appellant, if he ever acquired any title to the land in controversy, became a trustee of such title for the benefit of appellees. Appellees also, by way of cross-action against appellant, sought to have the certain two deeds, under which appellant claims that he acquired the title to the land in controversy, canceled as clouds upon their title. Appellant specially excepted to that portion of the special plea of appellees setting up the trust relation, and also pleaded a general denial of the special pleas and answers made by appellees, and also pleaded the coverture of Maria Gourlay, one of the parties under whom appellant claims, in avoidance of said pleas of limitations, and a plea of not guilty to the cross-action of appellees."

The case was submitted to the jury upon special issues, as follows:

(1) "Did D. J. Sullivan purchase the land in controversy in this suit from Isabella Gourlay de Belli and Maria Gourlay de Crespo for D. Sullivan & Co. or D. Sullivan? Answer `Yes' or `No.'"

(2) "State whether or not D. J. Sullivan acquired the knowledge or information as to the title to the property in controversy in the parties from whom he claimed to have purchased same through and by reason of his employment by, connection with, and confidential relation to the banking business of D. Sullivan & Co. or D. Sullivan. Answer `Yes' or No.'"

(3) "Have the defendants, and those whose estate they have, had and held continuous, peaceable, and adverse possession of the lands in controversy herein, using and enjoying the same, and paying all taxes thereon, concurrently as they accrued, claiming under a deed or deeds duly registered, for more than five years before the institution of this suit? Answer `Yes' or `No.'"

(4) "Have the defendants, and those whose estate they have, had and held continuous, peaceable, and adverse possession of the lands in controversy herein, using and enjoying the same, being in actual possession thereof, for a period of ten years before the institution of this suit; such possession, if any, being taken and held under a deed or deeds duly registered, describing, identifying, and designating the property in controversy? Answer `Yes' or `No.'"

All of said questions were answered "Yes."

The following issue was submitted at plaintiff's request and answered affirmatively, viz.:

"Was the land in controversy segregated and separated by a substantial fence from the lands in connection therewith or adjoining thereto; and, if so, when was said land so separated and segregated?"

Upon motion of defendants the court rendered judgment in favor of appellees against appellant that appellant take nothing by his suit, and that the deeds under which appellant claims title be canceled. We will first take up all assignments relating to the first special issue submitted to the jury.

By the first assignment of error complaint is made of the submission of special issue No. 1, hereinbefore stated. The first proposition under this assignment is very general, namely, that the issue was immaterial and the verdict of the jury giving an affirmative response to the question could not, under the pleadings and evidence in the case, form a basis for a judgment in favor of appellees. The statement under this proposition contains the evidence, or a large part thereof, bearing upon the issue, as well as that portion of defendants' pleading relating thereto, and we are of the opinion that the pleading made the issue and there was evidence to require its submission to the jury.

The second proposition is as follows: "Appellant having acquired the legal title to the land in controversy, and having paid therefor the sum of $6,642, if appellees claimed that, by reason of circumstances existing at the time, they had the right to have appellant declared a trustee of such legal title for their benefit, and desired to have said legal title divested out of appellant and vested in them, they should have offered to do equity in their pleadings and should have offered to reimburse appellant the said sum of money that he had expended in procuring the title to said land as a condition precedent to the exercise by them of any right to have a judgment rendered in their favor declaring a constructive trust." This proposition is really an objection to the sufficiency of the pleadings and should have been presented in the form of an exception to that portion of the pleading which makes the issue submitted to the jury.

The third proposition is in substance that the question submitted was leading. The jury was instructed to answer the question "Yes" or "No," and there was no suggestion as to how it should be answered. We do not think the question was objectionable. O'Farrell v. O'Farrell, 56 Tex. Civ. App. 51, 119 S. W. 899; Moore v. Miller, 155 S. W. 573; Sullivan v. Ramsey, 155 S. W. 584. The assignment is overruled.

The forty-sixth assignment questions the sufficiency of the evidence to support the finding of the jury in response to special issue No. 1. We think the jury was justified by the evidence in finding that D. J. Sullivan purchased the Balli and Crespo title to the land in controversy for D. Sullivan or D. Sullivan & Co. At the time of such purchase D. Sullivan & Co. held this land in trust for Lucie A. Fant, but had repudiated the trust, and were seeking to claim absolute title to the same. It was natural that the conveyance of an outstanding title would be taken in the name of D. J. Sullivan, who was not a member of the firm of D. Sullivan & Co., but merely an employé, and thus interpose another obstacle between the Fants and the recovery of their land. The relationship of the parties, their conversations, the immediate dismissal of the suit brought by Mrs. Balli and Mrs. Crespo, and the fact that D. Sullivan & Co. continued to collect the rents for this land without any remonstrance from D. J. Sullivan, all indicate that his purchase was for D. Sullivan or D. Sullivan & Co. Appellant's counsel say that he bought the Gourlay title because D. Sullivan refused to buy it, thereby greatly embarrassing J. C. Sullivan, appellant's brother, who had contracted for the same with the expectation that D. Sullivan would take the title and pay for same. Appellant did not so testify, his father, D. Sullivan, did not so testify, nor his brother, J. C. Sullivan, although they were the only persons who knew such fact, if it be a fact. Not one of the three took the stand as a witness, but appellant did state to Lasater, on the day before the trial, that the reason he bought the land was as above stated. This self-serving declaration, not under oath, made in anticipation of a trial, viewed in connection with the silence of the three persons who could testify regarding the matter and who were all presumably willing to assist plaintiff's case, must naturally have been viewed by the jury with great doubt, and in fact they had the right to, and did, discard it as unworthy of credence. In a motion for new trial, appellant states a reason for not securing the testimony of J. C. Sullivan but admits that it could have been procured by a postponement and that he asked for no postponement.

As was said by Justice Gill in the case of Pullman Palace Car Co. v. Nelson, 22 Tex. Civ. App. 225, 54 S. W. 624: "When the proof tends to establish a fact and at the same time discloses that it is within the power and to the interest of the opposing party to disprove it, if false, the silence of the opposing party not only strengthens the probative force of the affirmative proof but of itself is clothed with a certain probative force." Appellant's failure to adduce evidence, within his power, to explain or rebut the circumstances indicating that he bought the Gourlay title for his father or the firm of D. Sullivan & Co. strengthens the presumption arising from those circumstances. Thompson v. Shannon, 9 Tex. 536. Without discussing the evidence in detail, we conclude it was sufficient to support the finding and adopt said finding as our conclusion of fact upon the issue.

The fifth assignment reads as follows: "The court erred in rendering judgment in favor of the defendants for the land in controversy for the reason that, if the plaintiff purchased the land for D. Sullivan & Co. or D. Sullivan, and thereby held the legal title in trust for D. Sullivan & Co. or D. Sullivan, before defendants could recover the land of him, they would have to reimburse him the $6,642 that plaintiff paid therefor; and the defendants not only...