Underwood v. Hogg

• Decision Date: 08 March 1924
• Docket Number: (No. 8435.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 261 S.W. 556
• Parties: UNDERWOOD v. HOGG et al.
• Court: Texas Court of Appeals

261 S.W. 556

UNDERWOOD v. HOGG et al.

(No. 8435.)^*

Court of Civil Appeals of Texas. Galveston.

March 8, 1924.

Rehearing Denied April 3, 1924.

Error from District Court, Harris County; W. E. Monteith, Judge.

Action by John C. Underwood against Will C. Hogg and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Andrews, Streetman, Logue & Mobley, of Houston, Oliver J. Todd, of Beaumont, John H. Underwood, of Columbia, and A. R. Rucks and Elmer P. Stockwell, both of Angleton, for plaintiff in error.

Carlton & Meredith, David M. Picton, Jr., Stephen L. Pinckney, C. R. Wharton, and Wm. H. Wilson, all of Houston, for defendants in error.

GRAVES, J.

By a deed, absolute in form, dated August 12, 1902, filed for record October 28, 1902, John G. Bell and wife conveyed to J. S. Hogg what was thought to be 214 acres, but in fact was only 147 acres, out of what was known as the Kaiser tract in the J. H. Bell league in Brazoria county, Tex.

On January 25, 1915, John C. Underwood originally brought this suit in the district court of Brazoria county against Will, Ima, Tom, and Mike Hogg as the only heirs and legatees of J. S. Hogg, deceased, seeking to ingraft an alleged express parol trust upon this deed from Bell and wife to J. S. Hogg in his own favor, for an undivided one-third interest in the 147 acres referred to, averring that in so purchasing the land from Bell and wife during his lifetime and pursuant to a verbal agreement between Underwood and himself to that effect, J. S. Hogg had in fact acted for both of them and had consequently taken the legal title to the whole of the 147 acres, two-thirds for himself and as trustee for Underwood to the extent of an undivided one-third thereof, specifically averring that in connection with such verbal contract and agreement between them J. S. Hogg executed and subsequently delivered to him a written memorandum thereof in the form of the following letter:

"Hogg-Swayne Company, Incorporated.

"Beaumont, Texas, September 24, 1902.

"John C. Underwood, Esq., Columbia, Texas — Dear Sir: If you want it, I will let you have a one-fourth interest in the 214 acres of land I purchased from Bell and wife on `Haiser Mound,' at sixteen dollars and fifty cents an acre — the price I agreed to pay for it in cash. This would make your part cost you (one-fourth) $882.75. Of this I shall gladly allow you a credit of two hundred and fifty dollars for looking after my interests down there and for favors shown me. The balance — six hundred and thirty-two dollars and seventy-five cents ($632.75) you can pay me at the end of 12 months to be noted in my deed to you. If this suits you, write across this letter `accepted' and I will make you a deed accordingly, when Bell completes his title to me or mine.

                       "Your friend,               J. S. Hogg."
                

As further description of the agreement so evidenced by this letter, this averment was also made:

"It was agreed by and between plaintiff and the said J. S. Hogg that the said J. S. Hogg should take said deed in his own name, and should hold the legal title to said property in his own name until the balance of the purchase price due by this plaintiff to cover his one-third interest in said property, should be paid, and that he (the said J. S. Hogg) would hold the said one-third interest owned by plaintiff in said property in trust for him, and would make conveyance to him of said one-third interest in said property, upon payment to him of said balance of $700."

The underscoring of this quoted pleading is our own.

Subsequently the cause so filed was transferred from the district court of Brazoria county to the Sixty-First district court of Harris county, and remained without further action, as far as the records show, on the docket of the latter court until October 24, 1921, when plaintiff filed an amended pleading changing the form of the suit to the statutory one of trespass to try title, declaring himself to be the owner of an undivided one-fourth interest in the same land, and praying for title, possession, and rents.

To this pleading of plaintiff's styled his second amended original, the defendants answered with a general denial, plea of not guilty, the three, five, and ten years statutes of land limitation, and the ten years' statute of limitation against specific performance of the contract; plaintiff in turn, by supplemental petition, denied these answering pleas of limitation and proceeded to trial upon the merits upon this second amended original petition, and after the trial had proceeded to completion, so far as the evidence of plaintiff was concerned, and he himself had testified, the defendants offered in evidence a partition deed made between Underwood and J. S. Hogg on January 4, 1904, by the terms of which they had then partitioned all land owned by them jointly in the Kaiser tract lying in the Bell and an adjoining league, under which conveyance Underwood had taken a specific tract other than the one here involved and had expressly relinquished to Hogg all claim to the particular land in controversy in this suit, as the same had theretofore been deeded to Hogg by Bell and wife.

At this juncture of the trial, and to meet the effect of the partition deed, plaintiff Underwood offered to testify to a further parol agreement between himself and J. S. Hogg at the time of, or just prior to, the execution of this partition deed, by the terms of which the title to the land that went to Hogg under the partition was also for the benefit of them both; as the pleadings stood, under objections by defendants, the trial court excluded this testimony, whereupon on the last day of the trial, October 28, 1921, plaintiff, Underwood, filed a trial amendment, by which he declared upon this additional trust agreement between himself and J. S. Hogg, and, among other things, specifically alleged in reference to it as follows:

"They agreed that the legal title to be so taken by said Hogg in said partition deed as and for the lands set forth as the Bell interests, as same is described in the foregoing contract, should and would be taken by J. S. Hogg under the same trusts, conditions, and provisions as the said J. S. Hogg had theretofore held said interest in common under the terms of the written contract above mentioned, and that, acting and relying upon the said agreement and promise of said J. S. Hogg and upon the trusts aforesaid, the said John C. Underwood joined in said partition deed, aforesaid, and by the terms of which agreement said legal title was then and there taken, vested, and continued in said J. S. Hogg, according to the terms, provisions, and conditions of the said written contract of September 24, 1902, and in trust for this plaintiff, as aforesaid."

After their objections to the filing of the trial amendment in the circumstances had been overruled, the defendants replied to it by a further supplemental answer which contained exceptions, a renewal of all their former pleas, general demurrer, and denial the two, four, five, and ten years' statutes of limitation, and a reiteration of their preceding pleas concerning adverse possession, further declaring that plaintiff, Underwood, had abandoned his claims, and in addition sued in cross-action for all of the defendants individually and on the part of Will C. and Ima Hogg, as executors of J. S. Hogg, deceased, praying for title for themselves, as well for removal of any cloud cast by plaintiff's claims, and for general relief.

The trial court, after permitting plaintiff, Underwood, to testify to this additional trust agreement as being had between himself and J. S. Hogg substantially as alleged by him in the quoted portion of his trial amendment, then granted a motion duly made by defendants for a peremptory instruction in their favor. The jury having returned the directed verdict, judgment in favor of defendants followed, and plaintiff Underwood duly presents this appeal therefrom.

Plaintiff in error presents in this court only two assignments of error, which are as follows:

"(1) Under the pleadings and evidence as a matter of law, plaintiff was entitled to recover the land sued for.

"(2) The court erred in peremptorily instructing the jury to return a verdict for the defendants because, in any event, the defendants were not entitled, as a matter of law, to defeat the prayer for recovery of the land in question; it appearing there was ample evidence of an express trust, though resting in parol, upon which plaintiff had a right to rest his title."

At the outset defendants in error object to this court's considering either of these assignments, on the ground that both are too general and specify no distinct error, as required by rules 24, 25, and 26 for the Courts of Civil Appeals, and further, that No. 2, "even if true, does not remotely challenge the sufficiency of defendants' affirmative defenses upon which the court may have properly based a peremptory instruction."

We think the objections are fully supported by these authorities, cited by defendants in error under them: Mortimore v. Affleck (Tex. Civ. App.) 125 S. W. 52; I. & G. N. v. Branch (Tex. Civ. App.) 56 S. W. 542; Stein v. Roberts (Tex. Civ. App.) 217 S. W. 167; Sample v. Drake (Tex. Civ. App.) 224 S. W. 555; Crowley v. Finch (Tex. Civ. App.) 153 S. W. 648; Webb's Heirs v. Kirby Lumber Co., 48 Tex. Civ. App. 543, 107 S. W. 581-583; Gunther v. Lillard, 1 Tex. Civ. App. 325, 21 S. W. 118, 119; Land Co. v. Chisholm, 71 Tex. 523-528, 9 S. W. 479; Logan v. Lennix, 40 Tex. Civ. App. 62, 88 S. W. 364; Mahon v. Kinney County (Tex. Civ. App.) 28 S. W. 1024; Liner v. Watkins Land Mtg. Co., 29 Tex. Civ. App. 187, 68 S. W. 311-314; Houston Oil Co. v. Kimball, 103 Tex. 103, 122 S. W. 533, 124 S. W. 85; Westheimer v. Piner (Tex. Civ. App.) 240 S. W. 986; Conn v. Houston Oil Co. (Tex. Civ. App.) 171 S. W. 523; Walker v. T. & N. O. Ry. Co., 51 Tex. Civ. App. 391, 112 S. W. 430.

Obviously the first...