Fretelliere v. Hindes, 57 Tex. 392

57 Tex. 392 | Tex. | 1882

Lead Opinion

Stayton, Associate Justice.

That parol evidence is admissible to prove that a deed, absolute upon its face, was executed upon trusts not reduced to writing, and to prove a resulting trust, is not an open question in this court. Mead v. Randolph, 8 Tex., 191; Miller v. Thatcher, 9 Tex., 482; McClenny v. Floyd, 10 Tex., 159; Grooms v. Rust, 27 Tex., 231.

The general rule is that title subsequently acquired by a vendor, who has conveyed land by deed with general warranty, inures to the benefit of his vendee; but under the facts of this case the rule has no application.

The conveyance which John Vance took to the property from Mrs. Tounge and Mrs. Gillum vested in him the naked legal title to the property in trust for John F. Brackenridge, with whose money and for whose benefit he made the purchase.

Vance held the legal title in trust for Brackenridge until he made the deed to him, and if Vance had not made satisfaction for his breach of warranty to Michaud, appellant could not have any higher or greater right than Vance himself had (Burchard Hubbard, 11 Ohio, 332); but it appears that Yance had made full satisfaction to Fretelliere, who was the independent executor of the will of Michaud, and also the testamentary guardian of appellant, for the breach of warranty of his deed to Michaud.

The authority of Fretelliere to make the settlement with Yance, which he did make, cannot be questioned. If August Fretelliere, the executor of the will of Michaud, and testamentary guardian of appellant, has not paid to her the money received from Yance in settlement of his broken warranty, she has her remedy against him.

The judgment of the district court is affirmed.

Affirmed.

[Opinion delivered June 23, 1882.]

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Rehearing

On Motion for Rehearing.

Stayton, Associate Justice.

The motion for rehearing in this cause is based upon the ground that the court below erred in not giving judgment against John Yance for the full amount of the principal and interest of the sum. paid to Yance by Michaud, less the sum of $1,500 paid by Yance to Fretelliere, executor and guardian, in settlement of the breach of warranty; and this upon the ground that there was no consideration for the settlement between Yance and the executor and guardian.

This question does not seem to have been raised in the court below; no assignment of error raises it here, nor did brief of counsel directly present it when the cause was submitted, and whatever of merit there may be in the question, under the settled rules and decisions of the court, in the absence of an assignment of error raising the question, it cannot now be considered.

The motion for rehearing is overruled.

Motion t overruled.