Wink v. Wink

• Decision Date: 11 March 1943
• Docket Number: No. 11512.,11512.
• Citation: Wink v. Wink, 169 S.W.2d 721 (Tex. App. 1943)
• Parties: WINK v. WINK.
• Court: Texas Court of Appeals

169 S.W.2d 721

WINK v. WINK.

No. 11512.

Court of Civil Appeals of Texas. Galveston.

March 11, 1943.

Rehearing Denied April 1, 1943.

Appeal from District Court, Colorado County; Lester Holt, Judge.

Action by Mrs. Grace Wink against Mrs. Minnie Wink to recover a sum of money and to establish an equitable trust on certain realty and foreclose an equitable lien against the realty. Judgment for plaintiff, and defendant appeals.

Affirmed in part; reversed in part; remanded with instructions.

Hoyo, Sharpe & Williams, John C. Hoyo, and Eugene C. Williams, all of San Antonio, for appellant.

Hollis Massey, of Columbus, for appellee.

MONTEITH, Chief Justice.

This action was brought by appellee, Mrs. Grace Wink, for the recovery from appellant, Mrs. Minnie Wink, of the sum of $2,000, and for the establishment of an equitable trust upon certain real property of appellant located in the town of Columbus, Texas, and for a foreclosure of an equitable lien against said property.

Appellant in her answer admitted that she had received the sum of $2,000 from appellee, but contended that the advancement was made to her by appellee as an unconditional executed gift.

In a trial before the court judgment was rendered in favor of appellee and against appellant for the recovery of the sum of $2,000 and interest thereon, and for the establishment of a constructive trust upon said real property and the foreclosure of an equitable lien thereon.

Appellant was the wife of appellee's son, Harold G. Wink, who died as the result of accidental injuries received on March 15, 1942. On April 4, 1942, at the solicitation of appellant's brother, Owen Mehrens, appellee advanced to appellant the sum of $2,000 by depositing that sum to her credit in a bank at Columbus, Texas. The $2,000 deposited was a part of the proceeds of a payment to appellee, as beneficiary therein, of an insurance policy on the life of Harold G. Wink. At the time said advancement was made to appellant, appellee was not told by either appellant or Owen Mehrens that appellant had applied for the proceeds of a workman's compensation insurance policy due her as the surviving widow of Harold G. Wink, deceased, amounting to $5,921.51, which was paid to her shortly thereafter. The $2,000 in question was commingled with other funds in said bank belonging to appellant. Appellant testified that she had spent certain funds, something "less than $1,000.00", from this account in the purchase of a lot in the town of Columbus, Texas, from a Mr. Tate. There was no other evidence in the record in any way connecting the particular property on which appellee sought to establish an equitable constructive trust, and upon which a lien was established and ordered foreclosed in the trial court's judgment, with the lot paid for by appellant with funds from that account.

Appellee sought recovery on the alleged grounds that she was induced to advance the sum of $2,000 to appellant by the fraudulent representations and concealments of Owen Mehrens, who was alleged to have been acting for and in behalf of his sister, in that he represented to her that appellant was in need of funds for the purpose of defraying her ordinary expenses and for the purchase of a lot on which she contemplated erecting a house, and that, if appellee did not advance these funds to appellant, he would have to mortgage his automobile to procure these funds for appellant, and in that he fraudulently concealed from her the fact that appellant, within a short time thereafter, would receive the sum of $5,921.51 under said workman's compensation insurance policy.

No findings of fact or conclusions of law were filed by the trial court, and there is no showing of a request by either party therefor, therefore we must presume that the trial court found every issuable fact raised by the pleadings and tendered by the evidence in support of the judgment. Further, we must assume, under this state of the record, that there was sufficient evidence to support every fact essential to sustain the judgment, unless the...