Opinion
No. 3595.
January 6, 1938. Rehearing Denied January 27, 1938.
Appeal from District Court, Cass County; R. H. Harvey, Judge.
Suit to recover land by H. J. Wright and wife against F. P. Wright and others. Judgment for plaintiffs, and defendants appeal.
Affirmed.
This is a suit by H. J. Wright and wife against F. P. Wright, the father of H. J. Wright, and other defendants not necessary to mention, to recover a 100-acre tract of land out of a 300-acre tract. The 300-acre tract was conveyed to F. P. Wright on January 22, 1907, by Bob Moore. It was the theory of the plaintiffs that H. J. and F. P. Wright together agreed to purchase the 300-acre tract from Moore for $1,500; that the title to the 300-acre tract was agreed to be taken in the name of F. P. Wright, who was to hold the 100-acre tract sued for in trust for H. J. Wright; and that H. J. Wright had paid to F. P. Wright one-third of the consideration for the 300-acre tract. Other theories of the parties are indicated by the issues submitted, and what may be later stated herein.
Findings of the jury, briefly stated, are to the following effect:
(1) On or about January 22, 1907, H. J. and F. P. Wright purchased the 300-acre tract with the understanding between them that the deed to the 300-acre tract would be taken in the name of F. P. Wright, who would hold the title to the 100-acre tract for the benefit of H. J. Wright.
(2) H. J. Wright paid one-third of the consideration for the land.
(3) The 100 acres constituted the homestead of the plaintiffs at the time of the alleged sale of the land by H. J. Wright to F. P. Wright.
(4) After H. J. Wright moved to Bivins, he accepted from F. P. Wright $100 in cash and a promissory note for $900 to release any interest in the 100 acres claimed by H. J. Wright.
(5) H. J. Wright had not held peaceable and adverse possession of the 100-acre tract, cultivating, using, or enjoying the same for a period of ten consecutive years prior to February 27, 1936.
(5a) At the time of the alleged sale of the 100 acres by H. J. Wright to F. P. Wright, the former had abandoned his homestead on said tract.
(6 and 7) A balance of $979.72 remains unpaid on the $900 note executed by F. P. Wright to H. J. Wright.
Judgment was rendered in plaintiffs' favor for the 100-acre tract.
C. R. Newland and S. I. Cornett, both of Linden, for appellants.
Chauncey Chauncey, of Wichita Falls, for appellees.
The evidence amply supports findings 1 and 2. These findings and other undisputed evidence in the case established that the plaintiff H. J. Wright acquired an equitable title to the 100-acre tract by virtue of a parol trust, which title was superior to the legal title vested in the defendant F. P. Wright. Citation of authority to such effect is unnecessary.
This being the case, the judgment in plaintiffs' favor is correct unless it be shown that H. J. Wright's equitable title passed to F. P. Wright. The contention of the latter in this connection is, that in 1924 H. J. Wright verbally agreed with F. P. Wright to sell or release the 100-acre tract to the latter, in consideration of $1,000, of which amount a $900 purchase-money note was given by F. P. Wright to H. J. Wright and $100 in cash. This $900 note has not been paid, and it was not shown that F. P. Wright had made valuable and permanent improvements upon the land. Therefore, the evidence was insufficient to remove the alleged parol sale to F. P. Wright from the operation of the statute of frauds. Title remained in H. J. Wright. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216; Reeves v. San Antonio Bldg. Materials Co., Tex. Civ. App. 27 S.W.2d 904; Page v. Vaughan, Tex. Civ. App. 173 S.W. 541; Hickman v. Talley, Tex. Civ. App. 8 S.W.2d 267.
Findings 3 and 5a are wholly immaterial. They in nowise validate the alleged parol sale to F. P. Wright; nor is there any question of estoppel whatever involved as appellants' second proposition asserts.
Certain propositions are founded upon the assumption that H. J. Wright's title depends upon a parol sale to him by F. P. Wright. That is not the situation, and the propositions mentioned are irrelevant. H. J. Wright is asserting an equitable title to the 100 acres based upon the parol trust above indicated. The rules of law in that connection are well settled and call for no discussion.
All of appellants' propositions have been fully considered. None show any reversible error.
Affirmed.