Townsend v. Chaillett

• Decision Date: 28 October 1931
• Docket Number: No. 7632.,7632.
• Citation: Townsend v. Chaillett, 45 S.W.2d 354 (Tex. App. 1931)
• Parties: TOWNSEND et al. v. CHAILLETT et al.
• Court: Texas Court of Appeals

Page 354

45 S.W.2d 354

TOWNSEND et al. v. CHAILLETT et al.

No. 7632.

Court of Civil Appeals of Texas. Austin.

October 28, 1931.

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

Suit by Nannie Townsend and husband against Augusta Chaillett and others. From the judgment, plaintiffs appeal.

Reversed and rendered.

Works & Bassett, of Amarillo, and Woodruff & Holloway, of Brownwood, for appellants.

Wilkinson & Wilkinson, of Brownwood, for appellees.

BLAIR, J.

Appellant Nannie Townsend, the only child of John Chaillett and his first wife Bettie Chaillett, both deceased, sued appellees, Augusta Chaillett, the second wife of John Chaillett, and their twelve children in trespass to try title to recover the Joseph Young 640-acre survey in Brown county. By another count in her petition, appellant alleged that her mother, Bettie Chaillett, out of her separate funds, loaned Harris G. Smith $1,000, with which he purchased the land in controversy; that Smith never repaid the loan during the lifetime of Bettie Chaillett, but that after her death her husband, John Chaillett, accepted a deed from Harris G. Smith and wife to F. W. Schinkoth and a deed from Schinkoth to himself in final settlement and satisfaction of the loan; and that a constructive trust thereby arose in the land to the extent of her inherited interest in the purchase money.

Answering special issues, the jury found that out of her separate funds Bettie Chaillett loaned Harris G. Smith $1,000 with which he purchased the land in controversy; that after the death of Bettie Chaillett the land was conveyed by Smith to Schinkoth and by Schinkoth to John Chaillett in final settlement and satisfaction of the loan. Notwithstanding these findings of the jury, the trial court refused appellant judgment upon the constructive trust pleaded, and granted appellees' motion "to render judgment in their favor on the undisputed evidence," and allowed appellant only an undivided one twenty-sixth interest in the land as heir of her father, subject to the life estate of Augusta Chaillett; hence this appeal.

We think that the evidence on the issue of whether a constructive trust in the land arose in favor of appellant to the extent of her inherited interest in the purchase money was sufficiently clear and satisfactory to require the submission of the issue to the jury; and that the court erred in disregarding the findings of the jury on the issue.

Wm. H. Greer et al. conveyed the land to Harris G. Smith by deeds dated in 1885 and 1886. Will Middleton, a man about 60 years of age, testified that during Christmas week of the year 1886 or 1887, Harris G. Smith and his wife lived on the land, and on that date the following occurred:

"I remember an occasion of Mr. Greer and Mr. Smith and myself and Mr. Chaillett and possibly another gentleman being there about the Chaillett property along about 1886 or 1887. About that time. John Gilliam was there also on that occasion. He was a brother to John Chaillett's wife. And she was the mother of Nannie Townsend here.

"To state what occurred there on that occasion. We were at home when Mr. Smith sent down there for Uncle Henry Middleton, and I went with him up there. I was living then with my Uncle Henry; he raised me. My parents were not living. I was fifteen or sixteen years old at the time. I was born in 1872, in Angelina County, at Homerville. When we got there we went out there to where Mr. Chaillett, Mr. Greer and them was, at the wood pile on the H. G. Smith place. That is this land that is in controversy now. * * *

"Mr. Smith asked Uncle Henry if our grandmother had the money, and he told him that she did, `but she won't let you have it because she is going to buy a place. * * *'

"John Chaillett said that his wife had some money, and that they might get it there. He said that his wife had some money. And then Mr. Greer told him to call her out there and see if she would let him have it. * * *

"When she came out there Mr. Chaillett told her what he called her out there for, and she asked the amount. He said to his wife that he wondered if she would let Mr. Smith have her money to pay Mr. Greer for that place.

"As to whether Mr. Greer and Mr. Smith and the Chailletts were related in any way that I know of; well, they called each other cousins. * * *

"I will tell you what John Chaillett said to his wife, as I recall, about the money. He said, `Well, Bettie, Cousin Will Greer has come after his money, his land deeds or a law suit, he did not care which, but was going to have one. I have not got enough money to let Cousin Harris have it. Haven't you got enough?' She says, `I have one thousand dollars, and I want my money back the next fall and I won't let it go except that you and Cousin Harris promise me you will pay it back next Fall.' She was talking to her husband at that time. `Unless you and Cousin Harris promise to get it back next Fall, to me,' is what she said.

"There was a child or baby about there that I saw. She handed him that kid (referring to appellant) sitting over there. Handed it to John Chaillett and she agreed to let him have the money. She handed him the check book. I had not seen one before. I remember that I got up on my feet to see it. I did not know what a check was no more than a rabbit. That was a little narrow piece of paper. She opened back a lid. She took a pencil and wrote in it. I did not know what she wrote. * * *

"There was something said about the amount needed. $1,000.00 Mr. Greer said. He had to have a thousand dollars, to satisfy his wants and to pay the notes off. That was the land that Smith was living on. I was on the land that Smith owed the money on at that time; I was sitting there on that wood pile. That is the land involved in this suit.

"Mr. Chaillet said something in that connection as to where Bettie, his wife, got this money or came by it. He did. She said her father gave her part of it, and she had cooked for hands on the railroad for the balance. * * *

"The fact that she was writing a check impressed me. She told Mr. Chaillett to give her a check and a pencil and she would pay the debt. That was a check book. I know now that it was, but I did not know then She wrote the check in the book, and handed him the book and the pencil and all, and says, `There is the money now.'"

Witness Middleton further testified that a few days after the above transactions Greer, Smith, and John Chaillett went to Brownwood in a wagon; that Greer lived in another state; and that he never saw him again. Appellant was born January 15, 1886. Her mother, Bettie Chaillett, died intestate January 16, 1888, leaving appellant and John Chaillett as her only heirs. July 11, 1889, Augusta Chaillett became the second wife of John Chaillett. Shortly after this marriage they and the Harris G. Smith family moved to Fort Bend county. The Chailletts returned to Brown county after a few years, but the Smith family never returned, and the record shows that Harris G. Smith was dead at the time of the trial of this cause. Soon after the Chailletts returned, John Chaillett came to the home of witness Middleton, and together they went to the land now in controversy. There John Chaillett offered to sell him the land for $1,000, and, concerning Chaillett's taking the place over for the debt, Middleton testified as follows:

"We went over to this land that is now in litigation. As to what he said: We went on up to the house. He looked around over the place, and says, `Will, I want to make a trade with you.' I said, * * * `I do not know what kind of trade.' And he said, `I want to sell you this property to get this one thousand dollars.' He said, `You remember the one thousand dollars paid on the woodpile.' And then I says, `Good, God, ain't you got that thousand dollars yet?' And he said `No.' And he said that I could have it on fifteen years time. As to whether he said anything about Smith turning it over to him: He said he could not pay it, that Cousin Josephine said—Cousin Josephine was H. G. Smith's wife. She said that John would never get it unless he took the place.

"He said that he made him the deeds back. He could not pay for it."

"I had quite an intimate acquaintance with him. I was as good a friend of John Chaillett as walked the earth. That friendship continued up until the time of his death."

Middleton further testified that the year before Chaillett died he told witness that he expected Nannie (appellant) to give the rest of the family (appellees) lots of trouble concerning the land.

Smith's possession of the land through his tenants was followed immediately by Chaillett's possession through his tenants and in person, which continued until Chaillett's death January 29, 1929, since which time his widow and some of the appellees have been in possession.

The trial court made the following special finding of fact: "I find that the plaintiff, Nannie Townsend, first learned that her mother had loaned Harris G. Smith One Thousand ($1000.00) Dollars to pay the purchase money notes on the land involved herein, and first learned that she, Nannie Townsend, had an interest in said land during the month of April, 1929."

This finding was in no way attacked.

The deed records of Brown county show the following transactions pertinent to this controversy: By two deeds, the first dated May 12, 1885, recorded June 15, 1900, and the second dated August 17, 1886, recorded September 16, 1886, Wm. Greer conveyed the land in suit to Harris G. Smith, each deed reciting a cash consideration of $1,000. By a deed dated January 10, 1896, recorded June 15, 1900, H. G. Smith and wife Josephine conveyed the land to F. W. Schinkoth, and recited the following as consideration: "* * * For and in consideration of the sum of Ten Dollars, to us in hand paid by F. W. Schinkoth, the receipt of which is hereby acknowledged, and for the further consideration that on the 26th day of December, 1894, the said H. G. Smith...