Tolle v. Sawtelle, 2917
| Decision Date | 22 February 1952 |
| Docket Number | No. 2917,2917 |
| Citation | 246 S.W.2d 916 |
| Parties | TOLLE et ux. v. SAWTELLE et al. |
| Court | Texas Court of Appeals |
Morrison & Morrison, Big Spring, for appellants.
Thomas & Thomas, Big Spring, for appellees.
Moree Sawtelle instituted this suit against J. D. Tolle and wife in trespass to try title to a house and lot in the city of Big Spring. Defendants answered by general denial. The trial court entered judgment divesting defendants of all right, title and interest in the property and vested title in plaintiff. From this judgment defendants have appealed.
The court submitted the following special issue to the jury which was answered in the affirmative: 'Do you find from a preponderance of the evidence that at the time the property in question was deeded, it was purchased under an agreement, if any, between J. D. Tolle and his sister, Moree Sawtelle, to the effect that if he would make the down payment and get a loan on the place, she promised therefor to take care of their mother, Mrs. Laura B. Tolle, the rest of her life, and with the understanding that the place was to be the property of his sister, Moree Sawtelle, she to take care of all monthly payments, insurance and upkeep thereafter?
The evidence discloses that J. D. Tolle, appellant, and Mrs. Sawtelle, appellee, are brother and sister; that Laura B. Tolle, a widow, is their mother. In October 1945 Mrs. Laura B. Tolle became an invalid. When Mrs. Tolle became ill, Mrs. Sawtelle and her brother, J. D. Tolle, made a trip to Nevada where the mother was living. When they arrived in Nevada and saw her condition it was apparent to both Mrs. Sawtelle and Mr. Tolle that it was necessary for someone to take care of her. On their return trip from Nevada, J. D. Tolle advised his sister to go to Big Spring and buy a house that she wanted and that he would make the down payment and if she would take care of her mother the remainder of her life and keep up the payments on the loan, the property would be hers. Mrs. Sawtelle found a house in Big Spring that suited her which could be purchased for $4,750. J. D. Tolle made the down payment of $2,500 on the property and executed his notes for the balance of the consideration. The deed was taken in the name of J. D. Tolle and wife. It was the understanding between the parties that the deed would be so taken for the reason that Mrs. Sawtelle and her husband were not in good financial circumstances and probably could not get the loan. Mrs. Sawtelle and her family moved into the house on January 1, 1946. Thereafter, on February 5, 1946, Mrs. Tolle, the mother of the parties, moved into the house with her daughter, Mrs. Sawtelle. A short time thereafter the husband of Mrs. Sawtelle died. Mrs. Sawtelle throughout the years has taken care of her mother, made the payments on the loan and paid the taxes and insurance.
A short time prior to the filing of this suit, J. D. Tolle advised his sister that he had an offer of $16,000 for the place and that he was going to sell it. Thereafter, Mrs. Sawtelle filed this suit in trespass to try title. It is the contention of appellants that the evidence shows, as a matter of law, that J. D. Tolle was holding the property in question under an express parol trust for the benefit of his sister and is, therefore, inhibited by the Texas Trust Act, Art. 7425b-7, Vernon's Annotated Revised Civil Statutes.
It is the contention of appellee that the facts show a constructive or resulting trust and, therefore, does not come within the provisions of the above statute. Appellee relies solely upon the parol agreement between the parties to establish title to the land. Prior to the enactment of Section 7 of Art. 7425b, express parol trusts could be engrafted upon a deed absolute upon its face. However, since the enactment of this statute, the rule has been changed. As the law now exists, an express parol trust cannot be enforced. Klein v. Sibley, Tex.Civ.App., 203 S.W.2d 239; Fitz-Gerald v. Hull, Tex.Sup., 237 S.W.2d 256; Morrison v. Farmer, 147 Tex. 122, 213 S.W.2d 813. It is also true that a constructive or resulting trust is not inhibited by the above article. Fitz-Gerald v. Hull, supra. If the facts show a constructive or resulting trust, the judgment should be sustained. Otherwise, it cannot be upheld. An express trust is defined in 54 Am.Jur., page 22, Sec. 5, as follows: 'An express trust can come into existence only by the execution of an intention to create it by the one having legal and equitable dominion over the property made subject to it.'
The same text, 54 Am.Jur., page 147, Sec. 188, defines resulting and constructive trust as follows: 'Resulting and constructive trusts are distinguishable, but there is some confusion between them. From a practical viewpoint, a resulting trust involves primarily the operation of the equitable doctrine of consideration-the doctrine that valuable consideration and not legal title determines the equitable title or interest resulting from a transaction-whereas a constructive trust generally involves primarily a presence of fraud, in view of which equitable title or interest should be recognized in some person other than the taker or holder of the legal title.
Appellee contends that there was a confidential relationship existing between the parties, and, therefore, under the holdings of Fitz-Gerald v. Hull, supra, and Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985, a constructive trust is shown and the judgment of the trial court should be affirmed. This case is distinguishable from Fitz-Gerald v. Hull and Mills v. Gray upon the facts. In Mills v. Gray, Mrs. Gray conveyed to her son, Harry Mills, a house and lot on Broadway Street in Fort Worth to be held by him in trust for the benefit of his mother and his brothers and sisters. With the knowledge and consent of Mrs. Gray, Mills sold the Broadway property and used the money in purchasing a house and lot in Riverside in Fort Woth. Mrs. Gray contended...
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In re Herman
...consideration, rather than legal title, as the deciding factor with respect to equitable title. See Tolle v. Sawtelle, 246 S.W.2d 916, 918 (Tex. Civ.App.-Eastland 1952, writ refd). Any imposition of a resulting trust, therefore, is based on the concept that the party who furnishes considera......
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