Opinion
No. 8.
Rehearing Denied October 9, 1925. October 26, 1925.
Error from District Court, Eastland County; Geo. L. Davenport, Judge.
Trespass to try title by T. D. Turner and others against E. N. Dinwiddie and others. Judgment for defendants, and plaintiffs bring error. Reversed and remanded.
Conner McRae, of Eastland, for plaintiffs in error.
This is an action to try title. The parties will be designated as in the trial court. The defendants are E. N. Dinwiddie and Mrs. J. T. Urban, who was formerly Miss E. M. Dinwiddie. This litigation grew out of the controversy over a deed executed by J. C. Watkins and wife, dated February 3, 1914. Plaintiffs claim that said deed was executed to E. N. Dinwiddie as grantee and deraigned title under an execution sale against him. Defendants claim that said conveyance was to E. M. Dinwiddie, now Mrs. Urban, as grantee.
In answer to special issues submitted under the pleadings, the jury found (1) that said deed was executed to E. M. Dinwiddie as grantee, and that the record of said deed showing E. N. Dinwiddie as grantee was due to an error in recording; (2) adverse possession in Mrs. Urban under five years' statute of limitations; (3) that E. N. Dinwiddie received from Mrs. Urban's mother after divorce sums of money from time to time for the use and benefit of Mrs. Urban; (4) that it was not the purpose and intention of E. N. Dinwiddie to have said property deeded to his daughter as a gift, and that it was not his intention to have no claim of interest in the property thereafter.
No issue was submitted as to whether the father intended that the deed in question was to vest absolute title in his daughter at the time it was executed. The evidence is uncontradicted that E. N. Dinwiddie paid the consideration for such deed.
The judgment for the defendant Mrs. Urban cannot be upheld under the findings of the jury as to adverse possession under the five years' statute. It is doubtful whether there was an issue as to limitation in the case, but, conceding that this question was raised, there was no proof of the payment of taxes before the same were delinquent for five consecutive years prior to the bringing of the suit. Houston Oil Co. of Texas v. Jordan (Tex.Com.App.) 231 S.W. 320; Baker v. Fogle, 110 Tex. 301, 217 S.W. 141, 219 S.W. 450; Brownfield v. Brabson et al. (Tex.Civ.App.) 231 S.W. 491; Ammerman et al. v. Bourland (Tex.Civ.App.) 230 S.W. 804.
It is believed that the controlling issues in this case are as to whether the deed in question was executed originally to E. M. Dinwiddie as grantee, and, if it was, as to whether it was the intention of E. N. Dinwiddie to vest title in his daughter absolutely, or whether she held the title in trust for him.
The authorities seem to be uniform in support of the proposition that where the consideration is paid by a parent and a conveyance is made to a child, it is presumed that there is a gift or advancement. This presumption may be overcome by proof that it was the intention that the child should hold the property in trust. Shepherd v. White, 10 Tex. 72; Smith v. Brown, 66 Tex. 543, 1 S.W. 573. Parol evidence is admissible for such purpose.
These cases do not contravene the rule that in the absence of fraud, mistake, etc., parol evidence is not admissible, on behalf of the parties to a deed to contradict its recitals of a contractual nature, nor do these cases conflict with the further rule, that neither the grantor of a deed executed in fraud of his creditors, nor his heirs are permitted to ingraft upon such a deed a trust in favor of the grantor. Strickland v. Baugh (Tex.Civ.App.) 169 S.W. 181, and authorities cited.
In an effort to ingraft a trust on an absolute conveyance, the burden is on the parties claiming the trust. 39 Cyc. title "Trusts," p. 163, and authorities cited; Pomeroy's Equity (4th Ed.) §§ 1039-1040, 1041.
Where the trust relation is admitted, mere lapse of time will not bar a resulting or implied trust. Cole v. Noble, 63 Tex. 432; Strickland v. Baugh et al. (Tex.Civ.App.) 169 S.W. 181.
In view of the evidence submitted that E. N. Dinwiddie, who also went by the name of E. Dinwiddie, has had possession of the premises ever since the deed in question was executed, such possession continuing since Mrs. Urban's marriage, that he, with her consent, dealt with the property as his own and appropriated practically the entire rents and revenues to his own use, made rental contracts in his own name, part of the time rendered the property in his own name for taxes, there is an issue of fact as to whether at the time said deed was executed the father intended to vest title absolutely in his daughter, or that she holds same in trust for him. Hawley v. Geer (Tex.Sup.) 17 S.W. 914; Koppelmann et al. v. Koppelmann et al., 94 Tex. 40, 57 S.W. 570.
We have concluded that there was a question of fact as to who was the grantee in said deed at the time it was executed, and that the case must be reversed on account of the submission at the request of the defendants of the following special issue:
"Did the county clerk of Eastland county in recording the deed from J. C. Watkins and wife to E. M. Dinwiddie, introduced in evidence in this case, err in recording the name of the grantee as E. N. Dinwiddie, when he should have recorded it as E. M. Dinwiddie?"
This charge clearly assumes that E. M. Dinwiddie was the grantee in said deed at the time it was executed. While the giving of a leading question in the submission of a special issue is not error, a special issue, which assumes as proven a controverted issue in the case, is on the weight of the evidence. Chicago, R. I. G. Ry. Co. v. Smith (Tex.Civ.App.) 197 S.W. 614. MeCulloh v. Reynolds Mortgage Co. (Tex.Civ.App.) 196 S.W. 565; Shull Chipps Abst. Co. v. Schneider, 215 Mo. App. 595, 258 S.W. 449; Oliver v. Railway Co. (Mo.App.) 211 S.W. 699; Sooby v. Postal Telegraph Cable Co. (Mo.App.) 217 S.W. 877; Texas Pacific Coal Co. v. Sherbley (Tex.Civ.App.) 212 S.W. 758; Strawn Coal Co. v. Trojan (Tex.Civ.App.) 195 S.W. 256.
In view of the rulings announced, the other assignments become immaterial, and the judgment is reversed, and the cause remanded.