46 Tex. 141 | Tex. | 1876
The theory upon which this suit was brought is, that Larkin Hendrix, appellant’s testator, took the land set apart to him by the decree of the District Court in the case of ‘'Barnhill’s Heirs v. Barnhill’s Heirs, as a trustee in invitum for Sarah Stanley, the widow, legatee and executrix of Charles T. Stanley, deceased, or for her and plaintiff’s, appellees, in this court, as the legal and equitable owners of the headlight certificate for a league and labor of land, issued to said Charles T. Stanley. It was not the purpose of this suit to review and impeach or annul the judgment in the case of Barnhill’s Heirs v. Barnhill’s Heirs, and to show that plaintiffs had the superior title to the land granted to William Barnhill by virtue of its survey on the Stanleys certificate, or to assert a title to the land subse
Courts of equity, as says Judge Story, have adopted principles in regard to fraud, whether constructive or actual, exceedingly broad and comprehensive in the application of their remedial justice, and, especially where there is fraud concerning property, they will often interfere and administer a wholesome and sometimes even a strict justice in favor of innocent persons, who are themselves without fault in the transaction. (Story’s Eq. Jut., sec. 1265.) And it is unquestionably a common and familiar application of “their remedial justice ” for courts of equity to force upon the conscience of a party the duty of a trustee in regard to property which has been acquired by artifice or fraud, and where, either from the character of the property or the circumstances under which it is acquired or held, it would be against equity to permit such party to hold it, except as a trustee.
When the plaintiff seeks to impose upon the defendant the character of a trustee in invitum., evidently he must allege in his petition facts from which the court can see that equity and justice require that it should force upon defendant’s conscience the performance of that which is demanded of him. The facts alleged in the original petition, from which it is insisted appellant’s testator took the lands decreed him in the Barnhill suit as a trustee, are in substance: that without residing on it, and without alleging any right, title, or interest in the land surveyed for Charles T. Stanley in his lifetime,
Evidently, it is not shown by these averments that any fraud was practiced by Hendrix on plaintiffs, or their mother, who was a party to the suit. There is merely a bald assertion of fraud, as an inference or conclusion, instead of the statement of facts showing fraud, as is unquestionably necessary. The most that can be said is, that it may be inferred from these averments that there may have been irregularities in the proceeding, or error in the judgment, but as Mrs. Stanley was a party in this case, and plaintiffs’ action is founded upon the judgment, this is of no consequence here.
The obvious deficiency of the original petition, in alleging the facts relied upon, to charge Hendrix with fraud, and justify the court in holding him to have taken the land decreed to him in trust, is evidently not cured by the amended petitions. In the first amendment, plaintiffs merely assert that Hendrix, at the time he first assumed to control the lands located and surveyed by virtue of the Stanley certificate, had no legal interest, title, or claim to such land or said certificate, nor had he any right, title, or claim thereto from that time hitherto, and that all his acts were fraudulent as to petitioners.
And, in replication to defendants’ answer, plaintiff says that Hendrix took possession of the land and certificate mentioned in defendants’ first and second amended answers, fraudulently, and under color of a pretended title, which was wholly invalid; that they had no knowledge of such fraudulent and illegal acts, and supposed the pretended claim of the
Again, they say: the said Sarah Stanley, up to the time of her death, was induced, by false and fraudulent representations of Hendrix, to believe that he had a good title to the Stanley certificate and the land surveyed by it, and that the false and invalid claim, under which he assumed to possess and control the same, was fraudulently concealed from her during her life, and from plaintiffs until the time previously alleged. But what these representations were, or how his claim to the certificate and land was concealed, is not stated.
In the last amended petition and replication they say that Hendrix was an unscrupulous man, and possessed the ability to make the neighbors, among whom he and they lived, believe that the property of plaintiffs, which he had in possession, was his, and that they were thereby discouraged and prevented from investigating their right to the same, and that said Hendrix declared, everywhere in the region in which he and plaintiffs lived, that he had a good title to said property, thus negativing the averments of the original petition, that Hendrix had caused himself to be made a party to the Barnhill suit, without asserting any interest or title to the land, and that he should therefore be held to have taken the land decreed to him as trustee, while, from this averment in their replication, it plainly appears, if he had so taken it, he nevertheless held in open and notorious repudiation of the trust, which would have justified the court in sustaining the exception to the petition setting up the statute of limitations.
An examination of the statement of facts shows a more glaring deficiency of evidence to establish the essential facts necessary to support the verdict than does the petition of the averments requisite to maintain the action.
On the 27th of December, 1851, Stanley sold one thousand acres of land, described as located by virtue of his headright certificate to Hendrix and Pace, for the sum of seven hundred and fifty dollars; and to secure the repayment of this
On an order of sale issued in obedience to this judgment, the certificate was levied upon and sold by the sheriff of Travis county, where it seems to have been previously returned, with the field-notes of the land upon which it had been located and surveyed in 1853.
It is unnecessary for us to discuss the validity or invalidity of this judgment, or to determine whether the proceedings under it, by which Hendrix claimed to have acquired the title to the certificate, or the land upon which it had been surveyed, were valid or not. If we concede that the certificate was not subject to the levy while on deposit in the General Land Office, or that it ceased to be a chattel when surveyed, although the land to which it was sought to be applied had been previously appropriated, and that the title to it could only pass by a sale of the realty to which it was
The judgment is reversed and the cause remanded.
Reversed and remanded.