*1 39 pur- validating “A curative statute is one enacted for the confirming rights curing pose past proceedings defects arising past out of transactions.” neglect
The defects are where there described those complying requirements with some of law to com- or failure ply legal requirement.” with some “technical & Words sought Phrases, p. past here 665. The transaction to be cured legal requirement, is not a as contended the re- technical spondent, but is the creation of new cause action or defense prior that had not existed to that time. A remedial statute remedy obligation one which affords a enforcement of the City Galveston, or contract. De v. 470 and Cordova Texas City Worth, 1143. Slate Fort 193 S.W. powers build, operate, utility
Broad lines maintain along public highways given utility corporations on and are adopt; under the construction I would and the statute therefore nugatory, contrary, given is not rendered but on the full deny merely effect. The result of this construction would be retrospective operation against to the statute cities incor- porated prior passage statute, and I believe that doing following plainly expressed legislative so we would be intent. judgment I would Ap- reverse the of the Court of Civil
peals judgment and affirm the of the trial court. Opinion delivered Feb. 1951.
Rehearing April 4, overruled Fitz-Gerald, Jr.,
James Hull, v. H. Winston et al. February 14, 1951.
No. A-2738. Decided Rehearing April 4, 1951. overruled (237 W., Series, 256.) S. 2d *2 Winn, Terry, R. Turner, Winn, Carlton Rodgers, Scurlock & Dallas, peti- Crosslin, Lloyd all of Gerald FitzGerald tioner. plaintiffs pleadings and the offered evidence
Hull which and Green the oral disclose legal impose seek held an oral trust title nothing express parol defendant trust, more than Fitz-Gerald holding Appeals otherwise. Court of erred Civil holding Said court failed to also erred the evidence support fiduciary plaintiffs relationship between the and the defendant, equity impose can or of other elements which *3 legal defendant, a held trust title Farmer, 813; Fitz-Gerald. Morrison v. 147 2d Texas 213 S.W. 171; Eclipse Co., McAlister v. Oil 128 98 2d Waples- Texas S.W. Newsom, 755; App. Kaiser v. 108 2d v. Com. Elbert S.W. Co., Platter 156 2d Error S.W. refused W.M. R. Allison, Levelland, Martin,
Alvin
Moore,
Brewster &
Dean,
Martin,
Dean,
Jesse L.
Leo Brewster and Beale
all of
Worth,
respondents.
Fort
for
pleadings
While the
and the evidence show that
there was
agreement
no
plaintiffs
between the
and the defendant
express trust,
would create an
a
record shows that
construc-
tive
was
a
created as matter of law on
title
and
obtained
retained
the defendant because of
relationship existing
confidential
plaintiffs
between
and de-
through
long
fendant
acquaintance
their
and business trans-
agreed
acquire
actions in that
property,
all
the title to
be
taken in
three,
the names of all
which
was
taking
breached by defendant
title in his own name. And since
parties agreed
all
agreements
to be
their
bound
and
obligations
contracts,
intervening rights
assume all
of all
Co.,
impaired. Whatley
third
could be
Oil
Cato
1205;
2d
Gray,
985;
Mills v.
S.W.
2d
Alexander v.
S.W.
Kennedy,
19 Texas
title convenience, County, Hockley Texas. For lands in described alleged also lands. Plaintiffs called the lands will be Coble recovery. their claims detail statement joint allegations proof Generally, venture and show below, peti- respondents plaintiffs and entered into between — gas oil, other acquire tioner —defendant below—to respondents’ em- lands, mineral ployer, lease on in the event the Coble Producing Company, take Texas did not Gulf venturers, joint lease, develop operate as and to such lease owning the owning thereof, petitioner respondents one-half one-half; equally. The expenses other losses to shared petitioner name in violation took the in his own lease from Coble original agreement to be parties that was between re- taken in the of all The evidence shows names three. being spondents, taken of the lease soon as learned petitioner’s began asking name, their one-half deed to in, ratified, interest, acquiesced nor and never at time taking petitioner name. Petitioner act of lease his own kept respondents convey one- putting request their off the going lease, telling respondents ahead half of the he ,as part joint venture, had com- with he as soon pleted arrangements necessary develop he the lease certain convey con- respondents would their interest. This one-half brought lease tinued until two by had on the or three wells been operators interest to whom an undivided one-half assigned peti- by petitioner, time and then for the first *4 original agreement repudiated re- and denied that tioner convey spondents lease, had interest in the and refused to any part respondents. respondents’ of At of same to the close evidence, petitioner’s the trial court sustained motion for judgment denying re- instructed entered verdict was spondents any recovery. Appeals (232 of S.W. The Court Civil 93) 2d held a fact the evidence was sufficient raise issue as to the for existence a constructive trust said lease respondents trial benefit of and remanded the cause to the jury opin- court trial the issues as set out in before on its granted by Appeals ion. Writ was this Court. The Court Civil very pleadings has made detailed statement and the evidence, repetition opinion and we will not burden this with a of the same. keep appellate must
We in mind that when an comes court propriety having given to consider the of the trial court’s instructed verdict such Court must view evidence
43 against light party whom the verdict was most favorable to the Karr, 2d Stevens, 33 al 119 Texas S.W. instructed. 725; et v. White, 2d 141 172 295. Texas S.W. White recognied applicable principles long These have as been cases of instructed verdict. Court, previous neces
Under the decisions of this it was not sary plaintiffs permit under the Texas for the have secured 600a, Sts., amended. Securities Act. Art. Ann. Vernon’s Civ. conclusively This was in the case of Lewis decided this Court Davis, v. by was suit Texas 2d 146. That case S.W. against Lewis one-half interest Davis to recover an undivided gas gas rights, in certain oil leases and other oil and exception profits. for a division of trial sustained an court ground plead plaintiff’s petition to the permit on the that he had required under Art. 600a as a dealer. This action was Appeals. affirmed Court of Civil This court reversed cause, holding wrong exception remanded the fully citing previous sustained. After from decisions of this holding protection that the Court Securities Act for the purchasers against securities, sellers of and does not undertake regulate purchases protect against purchasers toor sellers Act, this Court discusses the amendment to the Securities changes and concludes that such amendment does “work general purpose require of the Act and so to amend it as to procuring permits buy or licenses who securi those registration protection ties and the of securities against buyers.” 1.c., col., p. Particularly sellers applicable bot. 1st language:
to the case at hand is this “(13) petitioner by It if follows that reason of an respondent with or a relation equit- became the owner or the gas able owner of a one-half interest in the oil and leases and acquired by respondent by petitioner, other mineral interest he respondent, against can maintain suit to establish and enforce his interest though petitioner respondent regis- even neither nor * * *” tered under the Act. Securities ground This for an apply instructed verdict cannot so as to sustain the trial court’s action. *5 pleadings
Petitioner contends that the and evidence of the respondents show, law, seeking as matter of that are express by parol, to enforce an specifically trust created which is prohibited by ease, Sec. Art. If such 7425b. were the the instructing action the trial court the verdict must be the pleadings and of reading respondents’ of the A
affirmed. respondents any question beyond that Facts shows Statement allegations trust. All the a constructive seek to recover parties was the between the are to the effect that petitioner, the purchase to made the of the lease was be that respond- in the the to be taken names of but that title was the pay respondents one- to petitioner, and were and that ents the all obli- for one-half of half the and liable consideration to be peti- thereof; gations lease and one-half that own agreement, tioner, the lease title to violation of the taken respondents (which in his name alone fact was unknown to in) ; after well and that for a time until after the first came respondents discovered title of the lease stood agree- original recognized petitioner alone, name of he conveyances respondents promised proper ment and to make to agree interest, respondents of their one-half did but petitioner’s holding name, to and to insist title in continued his state their interest to them. one-half be deeded Under in his petitioner property facts when the took title to the original agree- promise, own name in violation of and of the parties, un- ment to an made between he held the title for, of, divided one-half interest for and in trust the benefit agree- respondents. This trust arose not because there was petitioner, ment for the title to be taken in the name of respondents— be held to him in trust necessary express but, as would be- constitute trust — facts, equity protect cause under the raise trust would rights respondents, prevent unjust enrich- petitioner by promise duty ment of his violation of his respondents them, to take title in name of three of advantage. profit and for their mutual Leg., originally passed by Acts, As the Trust Act was 48th S., R. Ch. Sec. 2 read: ‘Trust’, trust. purposes “Sec. of this Definition of
Act, express only, trust means and does not include so-called ‘business trusts’ ”. very Legislature
At the next session Trust Texas particulars. Act was amended in made certain 2 then was read, at the as it did time of the set forth transactions respondents’ pleadings, and reads: as it now purpose “Art. 7425b-2. trust. ‘Trust’ for the Definition of only, Act this resulting means an not include (1) does trusts, (2) or constructive so-called ‘Massachusetts *6 trusts, security instruments (3) business or similar Trusts’ con- mortgages sales conditional trust, as deeds persons mere are or more one tracts, wherein (4) instruments any disclosed bene- persons without one or more nominees 1943, 48th Acts duties. any active trust and without ficiaries Leg., Leg., 1945, 49th Acts 148, 2, amended as p. sec. ch. ch. 1.” sec. Legislature possibly have only purpose could just amending definite what make more was to in thus many so words Act, by state trusts were covered resulting construc- apply or meant the Act that tive generally trusts, transactions to certain other business legal “trusts”, effect was or whose known and denominated as equity. limits come within the law or To to create “trust” in give Act, must prohibitions of facts a certain state and rise to an therefore, must, just express determine trust. We Act. It was express terms of this what trust under the adoption by prior rendered well-settled our decisions prevent did not of the Trust Act that of Frauds the Statute applied parol in land. These decisions establishment of a resulting equally. express, and constructive trusts There was form, appreciable end reached as to the difference in the early think name or character of the trust involved. We Fulcrod, 512, very clearly case of James v. 5 Texas sets out existing that under Frauds then our Statutes of establish- proven parol by ment of a trust in lands could evidence. Chief be might declaring Hemphill, Justice trusts established be by parol testimony, says: English
“The provides 7th section of Statute of Frauds any that all declarations or creations of trusts or confidences of lands, tenements, proved or hereditaments shall manifested or be writing signed by party some who is enabled law to trust, declare such etc.
“The 8th section declares that all trusts or confidences of implication land or tenements which arise or or result operation construction of law or are of law shall be of or transferred act like force and if effect as the statute had not been made. grants assignments requires
“The 9th that all writing, utterly trust or confidences shall likewise or be void and of none effect. provisions, adopted
“These which have in most of States, prohibit States United the creation of trusts of writing, proved by or manifested or unless lands unless law; laws, our by implication construction of but under result creation, implied trusts, or constructive to their footing. special proof, con- stand the same rather *7 raised, from former are and the facts tract under which the by result, may proven alike and sustained the latter which added.) parol (Emphasis evidence.” passed, of 1943 it con- Until our Trust Act Statute tinued trusts to be true that no distinction between the kinds of regard proof by in existed to the of the existence of parol. 1943, juris- Act of for the first time in Texas Trust prudence trusts; to-wit, required express that one of the kinds of trusts in real must be created some written instru- Heissner, 345, (1,2) ment. v. 148 Texas 224 184 Sevine 2d S.W. p. 186. many early
In ques- decisions of Texas courts where the evidence, admissibility tion raised had to do with the we expressions given find some as to the name to the state of facts “express However, involved that an present. trust” was as said Fulcrod, supra, Heissner, supra, James v. and Sevine v. prior adoption express proof of the Trust Act implied or subject constructive trusts was the same rules. Therefore, necessary was not for the court to make dis- deciding tinction between the various kinds of trusts language cases. This accounts for the some the earlier regard “express reading cases with all A trusts.” careful (1) those cases will show decision as to the kind and character of necessary of trust involved was not to the decision (2) nearly cases, case and all of the facts showed party either that the title was taken in the name of one party agree- the benefit previous of the other aas result of a parties, ment between the or that there had a ratification acquiescence part complaining party on the taking act of the defendant title in his own name. necessary distinguish Where it has been the various kinds trusts, we express believe that the Texas cases hold that an trust “can only by come into existence an in- execution of having legal tention to equitable create it the one do- property, subject minion over Gray, made to it.” Mills v. 33, 985, 147 (1-4), p. Texas 210 2d 1. c. S.W. 987. Jur., 42 p. 611, “Trusts”, Tex. Sec. 10: “Also, distinguished arising implica- from a trust from
47 by express tions, trust arises ‘either writing positive some acts of the direct ” or deed.’ following: “Trusts,” Restatement, To the same effect are the 72-73; 22, 1, p. 6, 23-24, Jur., p. par., pp. 54 Vol. 1st Am. Secs. “Trusts”, Wacasey App., 5; Wacasey (Tex. 256 v. Civ. Sec. 1020, 1022, history; (2-4), p. McAlister S.W. Eclipse 1. c. no writ v. Co., 171, ; 449, c., (3,4) 1. 175
Oil 128 Texas 98 2d S.W. (Tex. First App.,) State Bank v. National Bank Civ. Commerce refused; p. 409, (2), 1. c. writ Lobban S.W. Weirhauser, refused; (Tex. App.), writ Civ. 2d S.W. Pomeroy Equity Jurisprudence, Ed., Symons, 5th Vol. 152; Idem, 3, p. 916, 987; Vol. Simmons v. Wil- Sec. 847, son, (Tex. p. 852, App.), (4,5), c. Civ. 2d S.W. history. writ
Regardless language cases, early of some of the specifically “express Act Trust defines trusts” within the mean ing of provides: that Act. It Requisites “Art. 7425b-7. a trust. of express may following by
“An trust be created one of the or means methods: writing A by
“A. property declaration in the owner of the that he person, persons, holds it as trustee for another or or person persons; himself and another or or by
“B. A written property transfer inter vivos the owner of person to another as trustee for the transferor or for a third person persons; or or by A“C. transfer will owner to another
person persons person or persons; as trustee for a third or provided person a may beneficiary natural as trustee abe any such trust. appointment by An person having “D. power a a appoint- person ment to another power as trustee for the donee of the person; for a or third or promise by person
“E. A person rights to another whose person; thereunder are held in trust for third or beneficiary may legal “F. A be a co-trustee and the equitable merge by title trust estate shall not reason 1945, 109, Leg., p. thereof. As amended Acts 49th ch. See. 3. consisting “Provided, however, trust in relation or created, invalid, established, unless property shall be of real or declared: instrument subscribed the trustor or By a written “1. writing; duly agent authorized thereunto under claims By other instrument which the trustee
“2. Leg., 48th ch. affected. Acts the estate added.) (Emphasis 7.” facts we have the instant case the state of
We see any of the come within above “means or does not methods” express whereby be created under the terms of trust apply Therefore, such Trust Act cannot to our Act. the Trust express case, present. we do not have an (Texas Act, By Sec. 2 Trust terms of Art. 7425b) not a constructive trust included within the terms of Act. fiduciary
Petitioner contends that there must rela be some trust, tionship support between the constructive relationship and that the facts case that no this show existed. fiduciary relationship a confidential “While does give trust,
itself dering rise to a abuse confidence ren- acquisition property by person retention one un- against'another ground generally equit- conscionable suffices *9 able relief form of declaration the and enforcement of a trust, and the courts are to not limit the rule careful n orthe scope application by its a fiduciary narrow of definition of protected relationships or An it. abuse con- confidential of within the rule be an abuse a technical either fidence of fiduciary relationship relationship or am where one informal of person upon in another, trusts and relies whether the relation moral, a social, personal domestic, merely is or one.” Sec. Jur., “Trusts”, (Emphasis p. added.) 54 Am. 173. a . “The acquiring abuse of relationship by prop- confidential through
erty employment knowledge of or interest obtained basis, relationship in such constitutes a equitable sufficient con-, relief in form of the declaration and enforcement of a respect structive trust in property of in and favor of the wronged. person relationships The of trustee and que cestui' client, trust, principal agent, and attorney, employer but far n from employee, striking, examples exclusive, are of * * *” relationship meaning within the this rule. confidential of 226, Idem, pp. (Emphasis added.) Sec. 173-174. “An a unfair transaction between a confider and confidant fiduciary, or at least where confidence induced a fiduciary gives relationship parties, between the rise ato con- respect any unjust structive trust of enrichment of the con- fiduciary. attacked, fidant or Where such transaction is fiduciary proof or is on the confidant establish burden transaction, fully and to this end he fairness of the must disclose circumstances, affirmatively good facts and show his pressure part or influence on and the absence his faith However, every relationship it is not to which matter. term ‘fiduciary’ applied plausi- can be or ‘confidential’ with reason or presumption dealings bility, raise a as to of unfair so between the relationship. question parties to It is a of the actual rela- tionship inquired into, between must be ‘fiduciary,’ ‘confidential,’ can, not whether the terms or ‘trust’ degree reason, applied with some be relationship.” 227, Idem, pp. 174-175. Sec. general a purchase, rule is that
“The his own account benefit, by fiduciary or his own confidant, or prop- erty constituting subject matter or confidence fiduci- ary relationship, in violation reposed trust or confidence him, raises a constructive trust principal favor of a particular rule is confined to persons, class of confider. guardians, trustee, solicitors, such as but is rule of universal application coming persons to all principle. within prin- its ciple party permitted of the rule is that no can purchase duty perform an interest where he has a which is inconsis- * * *” purchaser. tent with the character of a 228, Idem, Sec. (Emphasis added.) Restatement, “Restitution”, p. 64, See also seq., et discussing where Constructive Trusts it is stated: Trust. 160. Constructive “Sec. holding person subject title to
“Where to an duty convey ground it to another on equitable that he *10 unjustly permitted enriched if he be were would it, to retain arisés. a constructive trust trust, express trust, unlike an
“A constructive is not a fiduci- although relation, ary give the circumstances which rise" to fiduciary relation.” may involve may or Idem, p. 644. Trusts
“Constructive all those Generally. include trusts Constructive “Sec. equity of the doctrines is raised a trust in which instances working justice efficient in the most out purpose of for the manner, parties to create intention there is no where contrary the intention relation, in most cases title, legal there is no holding and where the one They verbal, trust. declaration of the implied, or written person legal property is obtained title to arise when the duty implied, owed to the one violation, express of some entitled, thus obtained equitably when who is rights ownership. hostility As to his is held in beneficial contrary imposed by equity, of this class are trusts hands, they will, upon property in his intention and trustee’s phrase invitum; and this furnishes termed trusts in are often determining generally and sufficient for a criterion accurate analysis truly ‘constructive.’ An exhaustive what are trusts think, show, I all instances of constructive trusts would properly equity referred to what denominates so called element, fraud, constructive, an essential either actual or single equity and proceeds final in that where as their source. Even class obliga the maxim that an intention to fulfill an purchaser imputed, tion should be in assumes that duty, pursuance fiduciary tended to act in of his the notion simply absolutely fraud is not invoked because it is not neces circumstances; sary under' the existence of the trust might in all cases of this class be referred to constructive conception fraud. This notion of fraud enters into the in all its possible degrees. species Certain of the constructive trusts arise fraud; many spring from actual others from the violation of positive fiduciary obligation; some remaining in all in is, perhaps, real, stances there latent but none the less the necessary element of that equity unconscientious conduct which (The imposed calls constructive fraud. constructive trust prevent unjust enrichment.) equity, by extending “Courts prin- thus the fundamental ciple is, principle trusts —that of a division between the legal equitable estate in one and the estate another —to all cases of actual or good constructive fraud and faith, breaches of are enabled to power wield a remedial efficacy of tremendous protecting rights property; can follow the real specific property, owner’s preserve ownership, his real al-
51 legal title, thus and can though had the or never he has lost even compensatory dam- complete give far than the more remedies * * *” Pomeroy, Equity Juris- ages law in obtainable courts 93, Trusts”, 4, p. Sec. 1044. prudence, Vol. “Constructive Also : general, whenever “Sec. 1053. 8. Trusts ex Maleficio.—In through legal personal, property, title obtained real or has been through concealments, fraud, misrepresentations, or
actual taking advantage or influence, duress, undue one’s weakness any necessities, through under any other means or similar other similar which render unconscientious circumstances it legal enjoy holder of the title to retain and beneficial interest, impresses property on equity a constructive trust truly equitably acquired thus in favor who is of the one although same, may perhaps entitled any legal he never have therein; jurisdiction equity estate court of has original wrong- property reach the either the hands of doer, any holder, pur- subsequent or in the hands of until a good higher acquires chaser of it in faith and without notice right, and takes the relieved from trust. forms trusts, and variaties of these ex which are termed maleficio ex delicto, practically ap- principle are limit. The without plied necessary obtaining complete wherever justice, although give damages remedy the law also * * against wrong-doer. *”Idem, p. 119, Sec. 1053. Also, Idem, p. 140, seq., et Sec. 1056b. Our courts trusts, have discussed constructive and have being
defined
them as
Lipsitz
raised
law.
v. First National
Bank,
563,
col.,
top
col., p.
S.W.
1. c. 1st
2nd
567:
“Being void,
acceptance
money
from the sheriff
proceeds
as the
sale of
these
interest of
in these
heirs
lands,
denying
with the intention of
defendants
error
full
judgment
respective
satisfaction of their
demands as measured
rendered
4659,
in cause No.
him
made
trustee
reception
invitum.
money
of this
created in
favor of
defendants
error and Mrs. M. A.
Anderson
Lipsitz.
Constructive trusts are those which arise
purely by
equity,
entirely
construction or
independent
and are
presumed
parties.
actual or
intention of the
v.
Olcott
Gabert,
121,
985;
86 Texas
Dictionary;
23 S.W.
Bouvier’s Law
Ward,
367,
Currence v.
43 W. Va.
See also Texas Co. v. Co. Lumber col., 173; 169, p. 2nd 1. c. Simmons App.), 2d (Com. 12 S.W. 847, history; App.), 2d writ (Tex. S.W. Civ. Wilson 1(c), p. 506; on 1, “Trusts”, Scott Restatement, Vol. seq. et par. Sec. 462. Trusts, Vol. *12 616, al, 180 Follett, 142 Texas et case of MacDonald The the applicable particularly 334, to be we believe 2d S.W. belonging to lease land wanted
present In 1943 MacDonald suit. Texas, were and who non-residents who to Muellers were lease, expiring gas in and clients. An oil also Follett’s & a for MacDonald made to nominee lands on the Mueller Follett, signed Muellers, knowledge as- who, and consent with royalty and under lease an override of to Follett 1/32 working assigned lease oil interest under the to some then companies, subject immediately con- the override. Follett veyed in accordance with to MacDonald one-half of override knowledge agreement. Thereafter, prior their oral without Follett, April, renewal in MacDonald secured leases consent of assigning operators, Mac- in these to the oil leases name, in been done Donald reserved override 1/32 any part previously, convey Follett. but MacDonald would not October, expired April, 1940, and in 1937 leases in MacDonald, by negotiations Muellers, procured direct with top expi- on the effective leases same land to become assigned April, ration of the 1937 leases in 1940. MacDonald top operators these he leases to the same retained 1/32 royalty. top override Production was had under the leases ob- in that tained 1938. Follett claimed MacDonald held one-half Follett; such override benefit for the and that con- 1/32 structive trust arose in favor of Follett the minute MacDonald gave judgment secured the for override. trial court 1/32 on defendant interest instructed verdict as to claimed Appeals override, and the Court of Civil held the 1/32 question as to whether not or MacDonald Follett had entered joint joint into a venture if in was still venture top procured in at the existence time the leases were should jury, findings, might to a on be submitted favorable Follett holdings, points germane recover. There were other on but Court, to the question Supreme here involved. The in determin- ing cause, said: equity is a suit and in realm
“This conduct of judged by pre- is refined standards. rules No can be attempt scribed and no should be made formulate rules equity, the measurement of conduct courts of but that such exacting conduct must be measured standards utmost recognized. ex- universally fidelity parties We between the arriving conclusion difficulty at the perienced no facts, narrated, true establish found to if facts above Follett between existed of trust and confidence that a relation top prior and MacDonald execution * * *” leases. paid Follett had Follett that It was claimed MacDonald v. leases, the Court part but of the consideration for the 1937 no therefor, he says: paid the consideration MacDonald “While contrary, but, any money on the was not out on the transaction money by made the transaction.”
Surely top if a constructive trust held to exist to be express agree- leases, about there was no contention of which Follett, then we ment to hold such have override benefit holding difficulty trust —under the evi- given in case—could arise in favor of dence the trial of this *13 respondents petitioner the herein when the took the lease from in Coble his own name. fiduciary petitioner
It is can contended that no relation during negotiations leading taking up exist to lease, Newsom, (Tex. App.), and cites the case of Kaiser v. Civ. judgment, as S.W. 2d writ dismissed —correct author- ity discussing necessary relationship for such In statement. support raising relationship says: to of a trust the Court always prompt
“In its sense such a rule broadest should parties dealing others; yet ‘fiduciary’ acts of in rela- with recognized implies tion created and law than that. more obligation inception close relation of one This has its in enterprise, they partners joint a to another when are in be- trust, guardian ward, que tween trustee and cestui and and necessary enumerate. Peckham other instances not son to v. John- (Tex. App.), Civ. 98 S.W. 2d and authorities there cited.” recognized had the
Thus the Court pleaded by plaintiff would a sufficient “fidu- there have been trust, ciary relationship” held that to sustain but given, requested by plaintiffs, and since since no issue was upon upon them facts relied rested to establish the the burden there was not such a therefore, case; relationship and established point error. Also in Kaiser showed no reversible this Newsom, jury all favor- answered the issues submitted v. ably case, respondents testified In our to
to the defendant. necessary joint establish venture between the facts to respondents. petitioner and parties, agreed proof pleadings and show that the three regarding gas lease joint oil adventure this and to enter into duty perform further the common to to and that each had ad joint carrying interest each In out this common interest. duty fur highest to the other to so act as owed the venturer interest, subject matter joint and each as to the ther their petitioner agent adventure, of the other. The name, taking and duty his own the title in this violated and bene seeking profits to appropriate all the his own use gains disgorge divide his Equity him to and to fit. will force orig with their joint accordance with the adventurers other agreement. inal adventurers, exist- relationship joint like “The between imposes character,
ing partners, fiduciary between is joint obligation loyalty participants to the all the honesty fairness, good faith, concern and of the utmost respect pertain- dealings matters with each other their ing with especially whom enterprise. true of those This therein, transaction, or the involved the conduct regarded party as a trustee Such will be intrusted. advantage enjoy any permitted to unfair because will not be property. joint The mere possession or control of the of his rights he with the of his coadventurers fact imposes is intrusted rights duty guarding equally with him their on strictly own, required he is to account to his coadven- his rights turers; trust, any is recreant if he *14 Adventurers,” 30 Am. “Joint denied are recoverable.” Jur. 695, p. 34. Sec. 38, authority, 697, p. cited also Sec. and authorities
See same the text. Note 9 of engaged a joint adventure, or to assume “Persons about good relationship, owe to each other utmost such faith 623, scrupulous honesty Lind Webber, v. 36 Nev. 134 most 458, 139, (N. 1046, 461, S.) P. 141 P. 50 L. R. A. Ann. P. 135 1916A, (Emphasis added.) Cas. “Restitution”, seq,
Restatement et Sec. (2) declares law to be:
“(2) agrees person purchase property A who with another purchases property for on behalf of the other and himself other, constructive individually holds purchase duty though under is not even he the other.” recognizes con- that under this Section The comment testimony in this respondents’
duct, by is shown as give trust. case, may a constructive rise Thompson v. case is covered think this case We history, writ Corbin, 2d (Tex. App.), 137 S.W. Civ. wherein it is said: grounded upon propositions are 3rd, and 5th 4th “Defendants’ allegations sufficient special exception ‘there are no that any of min- plaintiffs’ in and to
impress a trust in favor of from Thompson. be observed It is to acquired eral interests agreement con- pleadings consideration for discussed. It promises further sisted of the mutual alleged above acquired under involved were interests here so, arrangement subject If thereto. said or the consider- promises entered into mutual and their execution joint acquired. properties Their ation were at the time the undertakings operations in mineral in- were to be confined oil to an area known as the East Texas terests and restricted alleges express petition if field. need not determine We Litigation arising implied trust or a combination of both. undertakings joint partnership out of similar adventure recognized here, sustained we have heretofore have Citing adversely our to defendants’ contention.” au- courts thorities. all the cases cited Court were cases While reasoning
trusts, Act, prior to the Texas Trust the same apply expressly will to a trust which is excluded from the terms of the Act. Looney, (Tex. App.), also Lanier 2d
See Civ. S.W.
writ refused. holding Appeals approve also Civil
We Court alleged proven by plaintiffs did constitute the facts laches as a matter of law. *15 conveyed an undivided one-half
Since the defendant Thompson, al, jointly- properties in these et and was interest operating al, Thompson, we believe that this lease with et Thompson plaintiff conversation with relative Green’s damage might filing suit, thereby, and the that be done plaintiffs. question on the laches of was admissible course, opinion, necessity, our is based the facts Of trial, presented particular on this face the trial verdict, attempt instructed and is no court’s determine facts parties testimony. have final trial where all introduced their on Appeals things judgment the Court of Civil is all affirmed. February 14, delivered
Opinion participating. Associate Justice Wilson not dissenting. Smedley Associate Justice Garwood, concurring. Mr. Justice approach may unnaturally An initial to this case one plaintiffs discrepancy unfavorable to the because of the vast present money between the controversy value of the apparently insignificant money and the plain- value of what the put impression tiffs into it. reason for Another such unfavorable alleged agreement proved only is testimony is oral .the gain by of those who much to have their suit and concerns the ownership of land. predisppsitions However natural these they however relevant be to fact-finders who will plaintiffs’ deteremine whether testimony true, do analysis not bear assume, now, when one has we do testimony is true. Clearly point legal significance alleged is not that the oral, that, being oral, but it said to establish an ever, difficulty interest in land. here, of the defendant how- agreements is that not all go oral which establish presumptively interest suspect are even in our It seems law. imposed oral uses and uses law on the basis of oral recognized transactions were as normal and valid institutions be- English fore the statute of frauds was enacted. That measure re- quired ‘written evidence to establish contracts for the sale of land, as does our own subdivision 4 of Article 3995 of the civil statutes. It requirement made the regard what, same with generally speaking, we “express now call trusts”. But left unchanged legal situation as to uses or which trusts the law might impose itself upon the basis of oral transactions without reference to the intent of the to create a trust. being sb, This if question there is' type of whether "the latter
57 exist, I think we adjudicated to of trust or shall not be shall considering speaking, rightly say that, legally are we cannot type recognition exceptional of evidence an or doubtful of recognizing proof any as valid more than in the case of testimony occurred. This accident oral of a witness that a traffic which, decisions, since Texas of our seems to be the effect early times, consistently in land be held that trusts have do, indeed, speak by parol. of those decisions Some established trusts, “express” but present in terms like the situations discriminatingly lightly, expression was used or whether this undoubtedly did not of the statute we held that subdivision resting Certainly apply parol. did to trusts in land the court valid, imply that, “express”trusts parol were not mean to while yet trusts could not raised the law itself the basis be parol validity of a ingly transaction. The of these trusts was accord- general special exception policy law. It our good simply part policy any was —for or like one of that ill— special exception other. It .was not to subdivision something simply statute but with which subdivision not is concerned. changed existing
The new Trust Act the then situation only providing state to the extent of a manner some- —in English what “express” different from the statute —that trusts by writing. though, English must be evidenced And like the statute, affirmatively operation did exclude from its trusts by operation law, established precautionary disposition this did not serve to make the latter class trusts more ex- ceptional suspect, or parol, Eng- when founded in than did the statute, simply lish but respect reaffirmed the law in as this English it had existed since before the statute. Trust What the do, however, Act did emphasize, was to more than did the English statute, writing that a required only is where the purpose intent and person the transaction were for one legal to hold a title person. the use of another This plain seems so reading from full 7425b-7, of Article that even if our earlier decisions defining should express be taken as trust in a way, “express broader trusts” which had in mind are “express not trusts” within the ban of the Trust Act. agreement now plainly before us contemplate does not any party was to part hold all legal title of the mineral lease for the use of another. There was no intent to create a trust and express therefore no statutory trust within pro- vision. say We need changes not agreement what would have made it express one for an trust or discuss under what agreement circumstances an oral express the form of an resulting It trust. a constructive may yet as enforcible agreement purport create not enough say here did trust. by any therefore, Since, banned the oral sought damages or, law, either enforcible it should be *17 through a ownership here, by suit to establish contrary, authority to the the state outside trust. there is While think, a authority, that such respectable I is no less there is said It here involved. under the circumstances trust arises broker, orally on volunteers A, professional no that if who is B’s and as credit day purchase property for B B’s a representative, day A agrees, same orally and on that and B own and with his proceeds purchase himself to make the for subject B, to his funds, in favor of trust arises a constructive Restatement, Restitution Sec. purchase price A. tender of the Corbin, e; 194(2), Contracts d and also Comments see may agency on rest point n. 61. The is that may relationship transaction, the confidential oral but that suit, transaction, of the which is the basis arise the same purchase the unfaithful and at almost the same instant as applies agent rule that the' same own name. It is said agent agent agrees principal and him- for whether Restatement, supra, merely principal. Comment self or for the distinguish instant from the e. I am situations unable to these “agency” may say point question I is not that one. true, time parol. yet I at the same cannot arise escape This thought us that if the before signed, questioned the admittedly have written and few would If relationship there arose. then and fact confidential coffee-shop so, logical say arise in an oral it could not is it invoking conversation, the statute same time without at apply There frauds, which, stated, case? does not as relationships evi- requiring all to be is no statute confidential by writing. in Beren- recent denced Decisions as the one em- Nirenstein, E. which 326 Mass. 93 N. 2d son phasize agent between an who is broker
the distinction not, agent by occupation arbi- seem somewhat and one who doing. trary in The case named cites the above-mentioned so imagine that, Restatement, but of the holdings and one section court, would have rested earlier of the same ground. upon constructive trust broader support- agree majority opinion fully part I with the ing holding application. that the Act has Securities February 14,
Opinion delivered dissenting. Smedley, Mr. Justice majority, be- opinion from the respectfully dissent I by the suit, made respondents’
cause I am convinced parol evidence them, to establish seeks offered evidence estate, is forbidden which real in relation to Regu- Act, Chapter Acts Texas Trust 7 of the Section Statutes, Legislature, Civil Annotated Vernon’s lar 48th Session Article 7425b-l-48. respondents and Green agreement upon Hull which oral according is, their
rely they seek to and which enforce on agreed by petitioner Fitz-Gerald testimony, this: It was on the other respondents Hull and Green the one petitioner hand respondents from the procure himself and should gas land tracts of lease on seven landowner Coble an oil and interests, Hockley County, undivided be owned in the lease to by respondents by petitioner one-half one-half Fitz-Gerald and *18 obligations together, Hull and contract Green that the the proportions taken should be in like and that the lease should be three, Fitz-Gerald, The in the names of Hull and Green. the respondents’ petitioner basis of the oral suit is that breached declining agreement by taking by and the lease in his own name recognize respondents to interests in it. as owners of principal
A majority opinion fault in the is that it avoids prohibition holding by the of Section 7 of the Texas Trust Act greement that express the is not one for of an trust the creation by and follows that conclusion the further conclusion that petitioner’s agreement parol reason of breach of the construc- respondents’ tive in implied. trust favor will The first be these testimony respondents conclusions rests the that agreed the title to the leases was to taken in the name of all be parties. agreement three opinion The if concedes that petitioner procure been that should lease for the three parties, taking name, title in his own it would have been an agreement express for an trust and not enforceable. The case majority very distinction, turned on that narrow about which more will be said. opinion holding agreement But the that the testi- oral as by respondents agreement
fied creating to was not an for or express an contrary trust our to decisions. In v. Sachs Gold- berg, 92, application refused, 159 S. W. for writ of error agreement alleged, plaintiff testified, and to which the was purchased plaintiff that a lot should be for the benefit of the and defendant, and that title should be taken in names plaintiff joint defendant and owners. The the defendant bought The in Pleasants, own name. and took title held, opinion court in an that oral Chief Justice agreement express plaintiff. created “an trust” in favor of the Briggs,
In plaintiff McBride v. S. W. agreed orally buy defendant town lots and that title should jointly. agreement, defendant, be taken The in violation of the took title in his own name and the court held that the evidence holding plaintiff’s established In favor. so discussing question of limitation court described the “express trust as an trust”.
In Weathersby, Brotherton v. 11 S. Texas W. testimony tending agreed there was prove two buy both, a land certificate and locate it for the benefit and the title was taken and the located certificate was court, name discussing objection of one of them. The an charge, agreement the trial court’s “If said: there was an buy the both, certificate and locate land for the benefit of paid if purchase, W. W. Brotherton his half of the then (Emphasis direct added.) trust was created.” court directed attention to the fact that our statute of frauds require did not that “such trusts” should evidenced writ ing, might it was well settled that be established by parol. our Crume, courts See Roach also 41 S. 86.W. Randell, in Gardner v. 70 Texas 7 W. S. 781, was purchase improved Gardner should for him- lot Randell, self and pay purchase money each to one-half equal to hold property, interests and it further *19 agreed that ninety days Randell pay should have in which to part Gardner purchase money by the advanced Gardner. bought When paid Gardner for the lot he took the title in his own agreement name. It was held that the was not a con- land, tract for the sale of required by and hence was not our writing, statute of express frauds to parol but that the agreement created, a provision Eng- trust was since the of the lish prohibited statute which parol trusts not been incor- porated in our laws.
Gardner v.
frequently
Randell
holding
has
been cited as
that
express
an
trust
agreement
joint
created
an oral
the
for
acquisition of land. See the authorities above cited and John-
Johnston,
ston
Sanders,
above cited precedents. statements The as their value deprive those cases of express were describing trusts trusts as opinions the given by judges were approved who deliberately made and have expression. It well thinking loose or to to careless have would in the cases of the facts full disclosure been support proof equities sufficient the want of shown implication trust. majority holding in the made Reference has to the been opinion express instant case because no trust there is agreement, by respondents’ testi- part oral shown of the mony, the three taken in the name of was that title should be impli- agreement, parties or the clear to the with statement agreement opinion part of the cation that but for this agreement trust. This it would have each instance the substance is not a reasonable distinction. In acquire the oral is that the defendant will parties. property As- himself and the other the benefit of suming agreements, validity of such when the defendant acquires parties. he holds it for himself and for the other agree- interests,
All whether have beneficial conveyance ment is that run in names of all of shall parties the only. or that it shall run in the name of the defendant ownership
When the defendant denies the or beneficial agree- ownership parties, he the oral other has breached fully ment as in- the one instance as in the other. In both parties stances for the benefit of the other could be only making proof agreement, decreed of the oral and this very is the evil that Section 7 of the in- Texas Trust Act was ruling majority opinion, tended to cure. Under the made in the prohibition always of the statute could be evaded testimony, part inclusion in agreement, aas of the oral agreed a statement that title was to be taken in the names of agreement. all of the opinion majority quotes portions
The of the text of Jurisprudence American primarily, wholly, which relate if not fiduciary to cases in parties. relationship which there is a between the quoted applicable case, text is not to the instant in which relationship. there is opinion of such a evidence part makes no reference to the text which deals with very question in this case. It is as follows: *20 “Agreement general to Purchase for Another. —The rule that where the requires statute of frauds trusts to be created pur- agreement promise writing, to an oral or
or evidenced an ex- enforced as chase land for another’s benefit cannot be press agree- promisee trust, the time of at least at where the promise and furnished ment or land had no interest agree- portion applicable purchase price. anto The rule is purchaser purchase joint and an- ment to benefit of agreement purchase property other, and thereafter and to an to convey therein, an- it with to an to divide another interest or requirement however, in the absence, other. In the of express evidenced statute of created or frauds that an trust be by writing, agreement buy another, land for oral to joint acquisition convey lands, an interest another of or to to given acquired in, express agreements divide, or effect as lands to be be although authority trust, to the effect there is acquire another, and turn it over to title to land merely another, of divide it with for the sale are contracts creating land, trusts, unenforce- are contracts Jur., so able.” 54 Am. the same Section 7 of the Texas Act in substance Trust English Frauds, and we have as Section 7 of the Statute requirement Section 7 of as that our Trust Act the same many English the other states that denced of Frauds and statutes of Statute affecting created or evi- lands must be trusts writing. part within the first instant case falls Jurisprudence, quotation an- from American which the above general statute, be, nounces the rule to where there is such joint purchase benefit that an oral land for the purchaser and another cannot enforced. be pp. R., 10-126, The elaborate entitled “Oral note in A. L. Buy page for Another” on Promise to Land contains following many general rule, statement of the with citation authorities: “Ordinarily, agreements purchase join land oral give right party any do not one enforceable to claim the bene- agreements purchase by fit of the the other. Viewed as clearly acquired, they transfer an are interest the land to be given Frauds; within the can effect Statute of nor promise another, in those to hold for the benefit of save jurisdictions where trusts need not be evidenced writing. Except complain- jurisdictions, therefore, in those resulting ant cannot obtain relief unless he can establish growing making money pur-
trust, out of the use of his chase, trust, de- or a the fraud of the based procuring title, fendant in of some confidential abuse *21 agreement relationship. com- the of the The mere breach purchase plainant may fraud is not the in the benefit of share give obtaining a constructive title, and will not rise so trust.” page, Texas, ac- R, 42 A. the rule On the same 63 of L.
cording prior enactment to the decisions made Statute, stated, the Texas Texas cases: citation of Trust is thus with Virginia “But in held that Texas it has been West agreement persons joint oral between two or more acquisition of land land within is not a contract for the sale of creating Frauds, trust, Statute of hence but one require enforceable where the local Frauds does not Statute of writing.” by trusts to be evidenced clearly foregoing quotations It is shown that an oral agreement persons acquisition joint of two or more for the of creating express land trust, is one and that the enforcement statute, such an is forbidden our 7 of Section the Trust Act. opinion majority is erroneous for the further proof reason that there is no in the of facts of statement such equities respondents’ favor as would warrant the use of respondents realty. constructive trust to award an interest in the principal primary The a use of the constructive trust is as of which he has remedy plaintiff property to restore to the deprived. generally been This is so true
trust is treated the American Law Institute in the Restate ment of the Law of Restitution rather than in the Restate ment of the Law of Trusts. “In most cases where a constructive imposed plaintiff property trust is the result is to restore to the unjustly deprived of which he has and to take from the de fendant in a the retention of him result which would corresponding unjust defendant; enrichment of the prevent plaintiff other words the effect is to loss to the gain corresponding put defendant, and to each of them position acquired in which he was before the defendant property.” Restitution, Restatement of Law Subdiv. p. imposed d., 9, 160, Sec. Ch. constructive trust prevent unjust expense enrichment of one of an at the restoring purpose quo. other, and for the the status See Scott Trusts, 251, Contracts, on Vol. Sec. and see Corbin on pp. says: 372-373, Vol. where author “Courts equity trust, generally used the of a constructive device express
compel restitution, but sometimes enforce lat- consciously for the promise used defendant. When disregard of the judicial purpose, ter it seem to involve compel statute; restitu- express when used to words of the but statutory excep- only tion words of is within disregard statute.” tion, *22 and refusal of relief would be construc- says: spoken of the of the use Scott “Dean Pound has affording ‘specific a received benefit trust as restitution of tive in ” Trusts, Vol. prevent unjust on order to enrichment.’ Scott 2, 462.1, Sec. Respondents not were
This suit is not one for restitution. any in interest the owners of the land involved herein or of they paid testimony that the minerals in the Their shows land. gas part and made oil and lease no of the consideration for the wells, payment drilling equipping expenses no the of and financing did part Petitioner and had no in the wells. the of by drilled the use not drill wells to be or cause of the performed funds, performed of to be his own caused but he development obligations of lease and obtained of the through con- producing wells to the extent of and Thompson, Forster tracts that and he made with Carr Purchasing for drill- Company. funds Stanolind Most of the Oil ing wells, million equipping and in total amount of dollars, company named on notes last was obtained from the Forster, Thompson, by Fitz-Gerald, and petitioner Carr executed conveying by leasehold estate. and secured deed of trust at Most of wells were drilled after November they respondents by petitioner which time were told by property. Respondents for 14 months in the stood interest drilling completion and before this suit was filed and saw the pro- producing expenditure the funds wells of Thompson, and by petitioner, Carr cured Forster, executed *23 exception Another a is that constructive trust be used remedy as a promissor procured by where has actual fraud 1, 44, Trusts, the transfer of land to him. on Scott Vol. Sec. 250; p. Contracts, 2, 373; 401, p. Corbin Restate- on Vol. Sec. 10, 730; ment of the Restitution, 182, Law of p. Ch. Sec. Note 10, pp. 42 A. L. promise R. 63. The breach of is the oral not obtaining fraud in give the title and will a so not rise to con- Contracts, 401, 2, pp. 373, structive trust. Corbin on Vol. Sec. 375, cited; and pp. 10, 16, cases Note 42 R. A. L. If it were 63. regarded prohibiting parol so the statute would be of trusts no effect. In tending prove case there this is no evidence petitioner procured that he lease fraud or that was in any way guilty Respondents’ testimony of fraud. evidence is agreement. parol that he breached the exception permits, proper circumstances,
Another under use remedy constructive trust as a where there cases existing fiduciary is an relationship acquired and duty fiduciary. in violation of The use of the construc- tive permitted, though in such cases is even in its effect prohibits parol contravenes statute which trusts. Mills v. Gray, 33, 40, 985; Corbin, 147 Thompson Texas 210 2d S. W. 157; 1, 250, 137 Trusts, 44, S. W. 2d p. Scott on Vol. Sec. Sec. 44.2, p. 253, 3, 462, 2314; Contracts, Vol. Sec. Vol. Corbin on 2, 401, pp. 377-378; Restitution, Sec. Restatement the Law of 10, 182, 730-731; Trusts, pp. Ch. Sec. Restatement of Law Vol. pp. fiduciary Ch. Sec. 1341-1342. The relation-
66
ships exception applies and which are such as executor devisee, guardian agent, ward, principal heir or attor and and ney client, parent child, partnership, joint and and adventure. Acquaintance relationship. friendship is not Elbert Waples-Platter Company, 146, 150; v. Midlinsky, 2d Rubin v. S. W. 217; 228, p. 321 Ill. E. J. N. C. setting testimony, Without out the state that it is sufficient to according petitioner evidence the record Fitz-Gerald respondens friends, acquaintances Hull and were and existed, Green friends, fiduciary relationship intimate that no age, that experience. were equal men of about education and business urged by It respondents fiduciary relation- there was ship agreement premises because the oral was that the leased developed would operated joint there as a adventure. But existing was no fiduciary relationship. merely oral There was agreement parties engage joint would in a adventure if and when acquired. the lease was in Kaiser As said v. New- som, 755, 758; 108 S. 2d principle W. “The discussed last above applies only created, after the relation either acts has parties court, decree of relied cannot be pending negotiation, which, culminated, if will create fiduciary relation.” opinion majority joint assumes the existence of a
venture fiduciary and a relationship petitioner and re- between spondents beginning agreement at the time when the oral acquisition sup- of the lease was made. The record lends port assumption, to for the oral to which re- spondents contemplated testified and intended that engage a joint development opera- would venture in the *24 tion of lease in and ac- event that after the lease was quired. bring The facts of this case it within the rule announced quotations in page 59, Jurisprudence, American set out above from 54 R., page
Section and 42 A. L. majority opinion primarily The relies on MacDonald v. Fol- lett, support Texas 180 S. 2d to the conclusion W. imposed upon realty that a in- fiduciary relationship volved herein because of a between petitioner respondent. decision, by and That reason of a decided cases, applicable difference between the facts the two is not to the instant case. raised
That case held that the evidence an issue of fact as gas pro- leases were and to the existence at the time renewal oil con- again trust and cured in in relation of 1937 and 1938 of a testimony disclosed The and Follett. MacDonald fidence between into entered early and Follett MacDonald that as as 1932 together personally agreement and acquisition them for the gas overriding royalties and under oil in of undivided interests company negotiated and Fol- for MacDonald’s oil leases to be landowners, Leases on clients, Mueller. named lett’s in 1934 procured pursuant to this land were first overriding royalty time at the same was and out of them a 1/32 conveyed Follett, a one-half conveyed by who lessee to belonged Fol- land royalty The interest in that to MacDonald. opinion, Mac- and, pointed out in the court’s lett’s clients through dealings only with Donald’s interest was obtained ownership of the opinion in its refers to Follett. overriding royalties court MacDonald and between and the relation existing”. ownership Follett in their as a “status expire existing and with the leases about With status agreed according testimony, was, between to Follett’s together him so and MacDonald that the two would work parties and the protected by all the leases would be renewal of overriding leases, royalties and Follett renewal of suggested under the a renewal that MacDonald talk to the lessees about landowners, try get Muellers, price and fair for the him, Follett, and that he could sub- communicate the offer to so testimony, According Mac- mit it to the Muellers. to Follett’s negoti- donald, knowledge, Iowa and without Follett’s went to procured ated renewal the leases with the Muellers and assignment overriding MacDonald, royalties with but royalties conveyed any overriding Fol- never interest procured by way lett. In same were other renewal leases leases, expiration MacDonald in of the 1937 before overriding royalty under the new leases retained 1/32 MacDonald. foregoing statement of the and evidence is suf- facts comment,
ficient without difference extended to show the vast period between that case and this case. There the over a years engaged negotiations agreements of several were procuring renewing gas oil and leases to be executed land, might acquire on the Mueller in order that and own together overriding engaged royalties They under leases. negotiations, agreements correspondence carrying out plans, together overriding royalties their owned the under *25 years procured the the leases for several before MacDonald assignment over- of the leases and the execution of the renewal existing close as- riding royalties There was under them. according confidence, FoIIett’s relationship to of sociation and said, no case, was testimony. has been there In the instant peti- relationship proof pre-existing of a confidential between they acquaint- respondents. were tioner and The evidence is they friends, friends, were and that of ances and not intimate age, experience. In instant case property equal the education and business “existing at to the there no status” relation was agreement made, is not time when oral and this the case in the was procured himself joint which one cotenant or owner right his associates renewal of a or interest which he and jointly then owned.
The within case record comes made evidence in the recognized exception permitting of constructive the use statutory prohibition parol to trust avoid the of trusts. striking statute, example case is of of what the Section Act, subjecting prevent, is, Texas Trust was intended to change testimony of land titles to attack and unaided to an agreement, destroying oral security titles. In thus case, having verdict, this there been an instructed Court correctly testimony respondents’ assumes the truth of made, Court, majority oral and then apparently ought per- petitioner induced to its belief that agreement, form the oral resorts constructive trust compel him to do so. use But this duty effect nullifies the statute when the Court is under the give prohibition effect it. If under this case the facts of avoided, of can conceive statute then it is difficult given part statute, case in which effect can be to that opinion majority stands, and if the the law of this state respect parol substantially realty with trusts will be same as it was before the Trust Act. enactment the Texas contentions, merit, presented
Other not without are application error, for writ of but are because not discussed governed by proviso I am convinced that case is Section 7 of the Trust Act. judgment Appeals of the Court of should be re- Civil judgment
versed and the of the District Court affirmed. Opinion February delivered 1951.
Rehearing April overruled notes they ownership an undivided one- and now assert willingness alleging take property, fourth interest subject rights Thompson, to the deed of trust and to the Company. They Carr, Purchasing Forster and the Stanolind Oil trust executed offer to and deed of become liable on the notes Purchasing operating Company to Stanolind and on the Oil agreement although Forster, Thompson, course with Carr they parties those in suit could not make themselves this instruments, Thompson, Company Carr the Stanolind being herein, could not Forster not any and their offer Thompson, way Forster Carr and relieve netitioner obligations they which incurred. have testimony of re- foregoing facts, established negative evidence, exist- spondents and the instruments justify the respondents’ favor that would equities ence of the suit trust; reveal use specific nothing performance for the substance more than one words, property. In other an oral in relation to real merely the en- to one suit facts in evidence reduce prop- real in relation to parol evidence of a forcement trust pro- literally directly within erty, and comes the case Act. Trust 7 of the Texas hibition of Section recognize in certain that have been cited texts implied, may exceptional be cases a constructive defined even contrary enforcing though an oral trust result it will implied under It words the statute. compel certain circumstances to See Corbin on Con- restitution. tracts, case, pp. Vol. 372-373. The instant has said, is one for restitution.