Spangler v. Spangler (26 S.W.2d 463, 1930)

WADKER, J.

August 31, 1S93, Charles Peterson deeded to Mrs. Sallie F. Spangler an undivided two-thirds interest in the Philip Thompson survey of 640 acres of land situated in Harris county, Tex., about nine miles from the city limits of Houston, at the time of the date of the deed. The deed recited a cash consideration of $4,686.67 and the assumption of an outstanding vendor’s lien note against the property conveyed in the sum of $533.33%, and that the said land was “to be the separate estate of the said Mrs. Sallie Spangler and .paid for out of her separate money.’’ The other one-third interest was owned by the John W. Harris heirs, and on the 2d day of 'September, 1894, Mrs. Spangler and the Harris heirs partitioned between themselves the entire 640 acres, she deeding them by specific metes and bounds her interest in a certain 213% acres as their one-third interest in the entire survey, and they deeding to her by specific metes and bounds their interest in 426% acres as her two-thirds interest in the entire survey. The Harris heirs conveyed Mrs. Spangler’s interest to her “as and for her separate property.” This suit was filed in the fall of 1927 by iS. H. and Frank 'Spangler against Mrs. S. F. Spang-ler to recover a two-thirds undivided interest in the 426% acres held by Mrs. Spangler, on the theory that this land was originally conveyed to her as trustee for them and their deceased brother Harry, the husband of Mrs. S. F. 'Spangler. By her answer she denied all allegations of the plaintiff’s petition and claimed absolute title to the property. She also pleaded laches and the several statutes of limitation.

The consideration for the Peterson land was $746.67 cash, paid by Mrs. 'S. F. Spang-ler, at the time the deed was delivered to her, out of her separate funds, and the assumption of the outstanding vendor’s lien as above described which, on maturity, was also paid by Mrs. Spangler out of her separate funds, and the transfer by Harry Spangler to Peterson of H. & T. C. Section IS in Wilbarger county, Tex. This land was conveyed to Peterson upon an agreed value of $6 per acre, which, with the $746.67 cash actually paid, made up the recited cash consideration. Peterson conveyed 'his land to Mrs. 'Spangler upon an agreed valuation of $12 per acre. Both valuations as recited in the deed were grossly excessive. The explanation given for this excessive valuation by S. H. Spangler was that land was conveyed in that way in ■those days. There was outstanding against section 18 all of the original purchase price due the state, which was $2 per acre, less the first payment of $42.66%, being one-thirtieth of the original- price. In fact, the equity owned by Harry Spangler in this section at the time he conveyed it to Peterson had little, if any, market value. About three years after this conveyance, the land was forfeited to the state because of the failure of the then owner to keep up the payments and resold later at $1.50 an acre. There was no evidence offered upon the trial showing anything more than a nominal value to this equity. The cash paid by Mrs. iSpangler and the note assumed by her practically represented the value of the Peterson land at the time it was conveyed to her. Beginning with 189S, and continuing until the filing of this suit, Mrs. Spangler rendered this land for taxes and paid all taxes due thereon, amounting to about $3,500.

Plaintiffs sought to raise the issue of trust by the following testimony offered principally by S. H. Spangler, but his testimony was corroborated by other witnesses offered by them. Without giving the detailed testimony of these witnesses, we submit the following summary of the facts testified to by them: ■ Prior to 1885, the exact date not .being material, . W. 238. So any testimony of probative force, as in any other case, would raise the issue, and it would b.e error to instruct against it. This principle of law, then, -is available to one denying the trust only upon motion to set aside the verdict against him on the'ground‘that it is against the great weight and preponderance of the testimony when weighed by the correct rule of law. If the trial court overrules this assignment, it must be renewed in this court, which appellant has not done. However, we would say that, if we are in error in this construction of appellant’s proposition, and if, in fact, it is broad enough to raise the issue that the answer to question No. 6 is so against the great weight and preponderance of the testimony as to be manifestly wrong, then, under the facts given in the preliminary statement, the answer should be set aside.

But, on our construction of appellant’s proposition, the issue just discussed is not before us, and the objection to the answer to this question must be overruled. Under this answer the lower court correctly ingrafted an express trust upon appellant’s absolute deed in favor of appellees to the extent of their interest in the land. Though appellant pleaded the defenses of laches and limitation, she showed no adverse possession, and therefore, as against the express trust, these defenses were not available. Montgomery v. Trueheart (Tex. Civ. App.) 146 S. W. 284; Wilson v. Simpson, 80 Tex. 287, 16 S. W. 40.

It follows from what-has been said that the judgment of the lower court must'be reversed and here reformed, reducing the interest of appellees in the land sued for to 46.2 acres, and that the amount of taxes charged against appellees be reduced in like proportion. In so far as the judgment of the lower court decreed partition, it is affirmed as to the interest hereby awarded appellees.

Reformed and affirmed, with the costs of appeal taxed against appellees.