54 Tex. 589 | Tex. | 1881
It is not questioned that an agreement in writing to execute a mortgage upon specific property would be enforced in equity. De Laire v. Keenan, 3 Dessaus., 74; Daggett v. Rankin, 31 Cal., 323. “The doctrine seems to be well established, that such an agreement, or a mortgage defectively executed, oran imperfect attempt to create a mortgage or to appropriate specific
But in the present case, the agreement which is sought to be enforced and carried into effect as a Hen upon lands, contains no sjiecific description of any property, whether real or personal, upon which it was to operate. In Williams v. Lucas, 2 Am. Cases in Equity, where the testator had borrowed of one Lane $300, and by his note of hand promised to pay the same, and to give security by a mortgage of lands for the same when required, it was held that the debt was not a charge upon any particular land, and could not be enforced.
Can parol testimony, then, be admitted to aid Wadgymar’s imperfect agreement, and make a mortgage of it? We think not. That would be in violation of the ‘(statute / of conveyances,” and would be creating an incumbrance upon real property by verbal testimony. It would be also objectionable as adding to and varying the written agreement of the parties by parol. It would be virtually to make a contract for them. This undertaking is not upon its face to create a mortgage upon real property. It would be satisfied by one upon chattels. It conveys the meaning that the property to be incumbered was the property then owned by him. The proof offered, was to apply it to lands afterwards acquired. It is very evident from the testimony offered by plaintiff that he has been imposed upon and defrauded by Wadgymar, but that will not justify the courts in violating the plain requirement of the law, “that no estate inlands shall be conveyed unless the conveyance be declared by writing,” in order to extend him relief. Courts have gone very far in the admission of parol testimony to aid and explain written documents, but never to the extent claimed in the present case. What is asked is not merely to explain the instra
The appellant contends further, that this case is not within the statute, for that the purchase of the land by Wadgymar with his money had the effect to create a resulting trust in the land for him. This proposition cannot be maintained. “If one pays the purchase money of land by way of loan for another, and the conveyance is taken to the other, no trust will result to the one who thus pays the purchase money.” Perry on Trusts, 133. Resulting trusts are not creative of contract. They arise from the acts of the parties, not from their agreement.
We are of opinion that there is no error in the judgment for which it ought to be reversed.
Affirmed.
[Opinion delivered March 25, 1881.]
