Tuck v. Miller

• Decision Date: 09 August 1972
• Docket Number: No. 11889,11889
• Citation: 483 S.W.2d 898
• Parties: Grady TUCK, Jr., Appellant, v. Geraldine MILLER et al., Appellees.
• Court: Texas Court of Appeals

Page 898

483 S.W.2d 898

Grady TUCK, Jr., Appellant, v. Geraldine MILLER et al., Appellees.

No. 11889.

Court of Civil Appeals of Texas Austin.

Aug. 9, 1972.

Rehearing Denied Aug. 30, 1972.

Vickery & McConnell, Charles R. Vickery, Jr., Don Stocking, Houston, for appellant.

McGinnis, Lochridge & Kilgore, Peter M. Lowry, Austin, for appellees.

O'QUINN, Justice.

Geraldine Miller, one of the appellees, brought this suit against Grady Tuck, Jr., the appellant, seeking to impress an equitable trust upon a 170-acre farm in Bastrop County, and alternatively for damages, based upon Tuck's refusal to perform under an oral agreement concerning the land.

The jury found that a confidential relationship existed between Geraldine Miller and Tuck prior to her conveyance of the farm to Tuck and that the land was deeded to Tuck pursuant to an agreement that he would take title for the purpose of obtaining a loan on the land and in order to secure Tuck for his expenses and services in effecting the loan. Upon these findings and others, all favorable to Geraldine Miller, the trial court entered judgment to impress the land with a trust for the purpose of enforcing the agreement as found by the jury.

Tuck has appealed and brings ten points of error. We will overrule all points of error and affirm the judgment of the trial court.

Geraldine Miller sued Grady Tuck, Jr., Robert C. Caldwell, her former husband, and Gonzales Savings and Loan Association. Charles N. Allred later brought suit against Tuck and Geraldine Miller and joined Gonzales Savings and Loan. The two suits were consolidated in the trial court and tried as one cause. On appeal Tuck is appellant and the other parties are appellees, except Caldwell who made no appearance below.

In November of 1964 Geraldine Miller and Robert Caldwell, from whom she was divorced late in 1968, prior to the filing of this lawsuit, entered into a contract to purchase as her separate property the 170-acre farm, which is the subject of this suit, from D. F. Kauffman, Jr. and his wife. Under the contract the purchase price was $25,500 with a down payment of $2,500 made by Geraldine Miller, and the balance was to be paid in monthly installments of $250 including interest at six percent. The land was encumbered at the time by a debt of $9,000, and payments initially were made through the First National Bank in Bastrop.

The Caldwells thereafter purchased a house in Austin from Charles N. Allred for $2,500 and moved the structure from Austin to the farm. The Caldwells paid Allred $500 in cash and agreed to pay the balance of $2,000 at the rate of $250 'every two or three months.'

During 1965, 1966 and most of 1967 the Caldwells kept up the payments to the Kauffmans, in all paying about $6,000, in addition to the down payment of $2,500. Early in 1968 the Caldwells began to falter in their payments, and when a check in March of 1968 was returned by the bank, the Kauffmans consulted their attorney who advised the Caldwells by letter that the balance of about $18,000 and current taxes of $44.10 would be required of them in thirty days. The Caldwells failed in an attempt to refinance their debt and entered into a period of trying to arrange for an extension with the Kauffmans. The Caldwells made at least two deposits of $250 in a Bastrop bank to the credit of the Kaufmans, but late in July of 1968 Geraldine Miller learned, in a telephone conversation with the Kauffmans' attorney, that the farm had been sold to Charles N. Allred. Later the two deposits of $250 each the Caldwells had made were returned to them.

While falling behind in their payments to the Kauffmans, the Caldwells had ceased also in 1968 to pay Allred on the house moved from Austin, with a balance by June of $1,250 still owing to Allred. When Allred called Caldwell by telephone requesting payment on the debt, Caldwell became profane and abusive and 'hung up the phone.' Allred consulted his attorney in Austin and also asked a friend who was a real estate broker to look at the Kauffman farm and to ascertain how much the Caldwells still owed on the place. The real estate broker advised Allred that in his opinion the place had a market value of approximately $50,000 and that the Caldwells owed about $18,000 plus current taxes.

Allred testified that he decided to buy the Kauffman farm because the Caldwells still owed him on the house and that by owning the farm he would recover the house. Through his attorney and the real estate broker, Allred succeeded in buying the farm from the Kauffmans for $18,153.81.

When Geraldine Miller learned from the Kauffmans' attorney that the place had been sold, she had Caldwell, she testified later, were 'in a state of shock,' largely because they believed the Kauffmans had agreed to delay termination of their contract to purchase. The Caldwells were still living on the farm, and Caldwell went at once to a nearby store on the highway hoping to find Kauffman and 'see what's going on.'

It was at the store, known locally as Hills Prairie Grocery or Sanders Grocery, that Grady Tuck, Jr., the appellant, first entered into the pastoral which found its denouement in the courthouse. Caldwell did not find Kauffman at the store as he had hoped, but did see Tuck, owner of a neighboring farm, who was already at the store. Tuck and Caldwell had known each other about three years, since the time the Allred house was moved to the Caldwell place from Austin, and the two men on occasions drank beer together at the grocery store.

Tuck testified that Caldwell told him that '. . . Kauffman had slipped around . . . and sold his place to Mr. Allred because Mr. Allred wanted to collect . . . for his house . . . and . . . that he (Caldwell) was in this situation, he had about ten days to dig up about $18,000.00.'

Bryan Sanders, who operated the store at Hills Prairie, was present when Caldwell and Tuck had their conversation in the store in July of 1968. Sanders testified that Caldwell 'was disturbed about some of his business on the place he had' and said 'they had foreclosed on him and he needed some money, he had to rake up some money pretty quick, he said.' Sanders heard Caldwell ask Tuck, 'Is there any way that you can help me?' and heard Tuck reply, 'Well, I don't know whether I can or not.'

After talking 'at the table for awhile,' both Caldwell and Tuck left the store. The next scene unfolded at the Caldwell farmhouse, with Tuck, Caldwell, Geraldine Miller, and her mother, Mrs. Wheat Miller, present and participating.

Caldwell arrived at the house first, followed very shortly by Tuck. At the trial Geraldine Miller testified that when Caldwell arrived he told her that Tuck was 'coming up here in a minute to talk to us about' the problem of saving the place. Both Mrs. Wheat Miller and Geraldine Miller testified that when Tuck arrived he referred to what he had heard at the store and wanted more details. Geraldine Miller testified that they told Tuck that the farm had been sold without their knowledge after they had put money in the bank under an agreement with the Kauffmans and that 'we just didn't know what we were going to do.'

Geraldine Miller quoted Tuck as saying, 'Well, why--if you were getting behind any or if you were having problems financially or if you wanted to refinance it, why didn't you come to me? What are friends for if they can't help you? Maybe being in the business of buying and selling land and financing land, I think I can help you.'

While the group sat in the Caldwell kitchen talking, according to Geraldine Miller, 'Grady started thinking, you know, 'Well, what can we do? We'd rather not go into a lawsuit over this thing,' which we wanted to prevent, 'but is there some way to where we can work it out where we could get Mr. Allred to convey the property back?' And, if we could, then Grady felt he could help us to secure a loan and give us a change to either finance it through somebody else or maybe Gonzales (Savings and Loan) would finance it to us, or if we didn't get it refinanced, then we would sell it.'

Mrs. Wheat Miller, who had known Allred many years as a friend, was picked to talk to Allred. Mrs. Miller left at once and drove to Allred's farm near Austin to talk to him. Allred testified that he was operating a tractor when he saw Mrs. Miller drive through his gate. Allred stated, 'She drove down there and I got off the tractor and walked over there to her, and she . . . said, 'Charles, Sister's awful upset and I just wonder if you'll do something for me.' And I said, 'What's that?' She said, 'She wants that home."

Allred then replied, 'Bob Caldwell, he's no good, and how can she pay for it?' Mrs. Miller said, 'Well, she's got a dear friend that's going to help her pay for it, her and Bob.' Allred protested to Mrs. Miller that he did not want 'somebody else' to have the place, but that he would agree to her request if Mrs. Miller's daughter was to get the place back and if Allred could recover the money for his house and for expenses incurred.

Mrs. Wheat Miller returned to the Caldwell farm and reported her conversation with Allred. It was decided then that Tuck and Caldwell would go the following week to Gonzales Savings and Loan to inquire about obtaining a loan. Gonzales agreed to make the loan, but not to Caldwell. To secure a clear lien on the farm, it became necessary for Allred to execute a deed to Tuck, in whose name the loan was to be made. Allred received $20,886.93 which reimbursed him for the price he had paid the Kauffmans and for his house and expenses incurred. Allred testified that he intended to help Geraldine Miller to get the farm back and that he would not have conveyed the place to Tuck, whom he did not know, at a price far below the farm's market value. Allred's attorney, Donald Thomas of Austin, declined to proceed with writing a deed from Allred to Tuck until he was assured by Mrs. Wheat Miller that the whole transaction was for Geraldine Miller...