Williams v. Neill

• Decision Date: 27 November 1912
• Citation: 152 S.W. 693
• Parties: WILLIAMS et al. v. NEILL.
• Court: Texas Court of Appeals

152 S.W. 693

WILLIAMS et al. v. NEILL.

Court of Civil Appeals of Texas. Austin.

November 27, 1912.

Rehearing Denied January 15, 1913.

Appeal from District Court, Tom Green County; J. W. Timmins, Judge.

Action by James J. Neill, administrator of William Johnson, deceased, against Lula Williams and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Bell & Upton and Blanks, Collins & Jackson, all of San Angelo, for appellants. Wright, Wynn & Bartholomew, of San Angelo, for appellee.

Findings of Fact.

JENKINS, J.

Plaintiff, as administrator of William Johnson, deceased, brought suit to recover a lot in San Angelo, Tex., and for rents on same. Smith Ellis, one of the defendants, was common source. The lot formerly belonged to William Johnson, who deeded the same to Smith Ellis March 21, 1896. On July 3, 1896, Ellis executed and acknowledged a deed to said lot to said Johnson for the alleged consideration of $1. Said deed was recorded in Tom Green county December 29, 1905. Plaintiff sequestered the said lot, and the defendants replevied the same. Lula Williams filed plea of general denial and a plea of not guilty. Smith Ellis filed a general denial and plea of not guilty, and also disclaimed any interest in the real estate sued for, but claimed that he was the owner of a certain house located thereon, and that under a verbal agreement he had the right to remove the same at his option, or at the request of Lula Williams or William Johnson. Plaintiff, by supplemental petition, admitted that said Ellis owned said house, and had the right to remove the same.

There was judgment for the plaintiff for the recovery of the lot, and for $600 rents against Lula Williams and Smith Ellis and their sureties on the replevy bond.

Opinion.

The evidence as admitted by the court sustains the judgment. The issue upon this appeal is as to whether or not the court erred in excluding the testimony of Smith Ellis, which, as set out in bills of exception, would have been substantially as follows: That on March 21, 1896, he bought the lot involved in this suit from William Johnson, deceased, paying him therefor the sum of $90; that he had a verbal agreement with said Johnson to reconvey to him said lot at any time within 24 months from said date for the said sum of $90 with 10 per cent. interest to the date of such reconveyance; that, in anticipation of said Johnson exercising this option to repurchase, he prepared the deed introduced in evidence by the plaintiff from himself to William Johnson on July 3, 1896, and placed the same in his private papers; that Johnson never exercised said option, never paid nor offered to pay him anything for said lot, and that he never at any time delivered said deed to said Johnson; that on December 29, 1905, defendant Lula Williams, who at that time was the bookkeeper of said Johnson, came to him, in company with said Johnson, and that Johnson requested him to sell said lot to Lula Williams; that said Lula Williams stated to him that she had sold a lot in Waco for $180 cash, and that she wished to buy said lot; that he sold the same to said Lula Williams for $180 cash and her note for $100, which she afterwards paid; that at said time he delivered the deed which he had executed to said Johnson on said 3d day of July, 1896, to said Lula Williams, and that she immediately took the same to the clerk's office, and filed it for record; that Johnson never at any time paid him anything for said deed; and that the purchase money for the same was paid to him by said Lula Williams. This testimony was objected to upon the ground that it related to a transaction of the witness with the deceased William Johnson; and also that it sought to vary the terms of a written instrument.

1. As to the latter objection, it is not tenable for the reason that it is well settled in this state that a trust may be ingrafted by parol evidence upon a written instrument. James v. Fulcrod, 5 Tex. 516-519, 55 Am. Dec. 743; Smalley v. Paine, 130 S. W. 742; Kinlow v. Kinlow, 72 Tex. 639, 10 S. W. 729; Allen v. Allen, 101 Tex. 362, 107 S. W. 528.

2. It will be seen from the above statement that the title to the lot in controversy prior to December 29, 1905, was in the defendant Smith Ellis. In order to vest...