15 Tex. 570 | Tex. | 1855
The appellant (being plaintiff jbelow)
The substance of his averments is, that in the year 1887 the said Oliver and D. 0. Gilmore became the joint owners of the headright of one Camel Cooper ; that the whole of the purchase money was advanced by Oliver; and that Gilmore, in consideration of his interest, was to be at the expense and labor of having the certificate located, surveyed and patented ; that for purposes of convenience, the transfer was to be made to Gilmore, omitting the name of Oliver , but that Gilmore should be entitted to only half of the land, holding the other half in trust for Oliver, and conveying the same to him, after the issue of the patent; that the certificate was issued to Gilmore as assignee in 1838 ; that Gilmore had the same located and surveyed and a patent was issued thereon in December, 1847 ; that in 1851 the plaintiff became the owner of the interest of Oliver, by purchase ; that Gilmore had departed this life and Moses Johnson been appointed his executor, but that neither the testator during his life, nor has his executor since his death complied with the stipulations of the agreement; that the land was sold on the 5th of September, 1852, by the - executor of Gilmore at public sale on a twelve months credit to L. W. Alexander. During the progress of the suit, Johnson died and W. S. Thomas, administrator de bonis non of Gilmore, was made a party. Among other matters the defendants pleaded the Statute of limitations of ten years. The suit was cpmmenced on the 2d December, 1852, after the sale of the land to Alexander, but before the payment of the purchase money.
The judgment was for defendants and a motion for a new trial being overruled the plaintiff appealed and assigns error :
1st. On overrruling motion for a new trial.
2nd. On the instructions of the Court to the jury.
3rd. In giving instructions asked by defendant.
4th. For refusing to give the second and third instructions asked by the plaintiff.
These grounds are not discussed by counsel in the order of their assignment. The point first noticed by them is) that the verdict is contrary to the evidence ; and this assignment we believe to be well taken. The evidence of the witness Stewart is positive as to the statements of Gilmore, acknowledging that he had been trying to sell the land and was anxious to do so on Oliver’s account; that Oliver was the owner of the one half of the land; that the certificate was purchased by him with Oliver’s means ; and the deed taken in his own (Gilmore's) name ; that he was to have one half for his trouble in purchasing, having the same located, surveyed &c.; that if he could not sell the land and pay Oliver the one half of the proceeds, he would make Oliver a deed to the undivided half of the land. These admissions were made in 1848. The rule is well established, that the unassisted oath of a single witness to the mere naked declaration of the trustee admitting the trpst, will not, without corroborating circumstances, be sufficient io establish the trust. (Neill v. Keese, 5 Tex. R. 23 ; Lench v. Lench, 10 Ves. 511 ; 1 Johns. Chan. 582 ; 9 Tex. R. 482.) But the testimony of Stewart as to the admissions of Gilmore is not the only evidence. It is corroborated by the deposition of Cooper, who swears that he sold his headright in 1837 to a man named Gilmore or Gibbo, not certain about the najme, but thinks it was Gilmore, who was merchandizing in the town of Matagorda ; that he was a partner of a man about whofee name he was not certain, but tilings it was a Doctor Olford or Alford, a Dentist; that the man who bought stated that1 he was purchasing it jointly with his partner, although (as the jvitness believed) the transfer was made to the one who purchased. The deposition of Wm. F. Oliver, who sold to the plaintiff, jbut executed only a quit claim title, confirmed substantially the admissions of Gilmore and the evidence of Cooper, in the essential particular that they had a joint interest in the land, though the assignment or transfer was made to Gilmore alone. The
The evidence of Stewart would alone have been sufficient, were it not for the rule of policy, which excludes parol trusts from being set up to defeat a paper title, on the unsupported testimony of a single witness. But his evidence was corroborated, and there being no rebutting testimony, the evidence was fully sufficient to have authorized a verdict for the plaintiff.
The Court was requested by the plaintiff to instruct the jury, that the Statute of frauds could not affect any contract that was made before it was in force viz: on the 16th March, 1840 ; and also that it had no application to the suit at bar. These instuctions were refused and this might have been very proper, at least not objectionable, had equivalent instructions been embraced in the general charge, or had no reference been made to the Statute, in the charge, or had principles of law not been given to the jury and which are found only in the Statute. In the general charge the jury are instructed that if they believe the agreement purporting to have been entered into between Gilmore and Oliver was not to be performed within one year from the date of the agreement, they should find for the defendant. This is not a general principle of law, but a rule established by the Statute of frauds. Whether a contract of this character, even if made after 1840 could be brought within the scope of the rule in relation to performance within the year, will not be discussed ; at least it is very questionable. But the Statute is altogether inapplicable to the agreement. It was subsequent in date and cannot affect contracts prior to its passage. There was error therefore in the refusal of the second and third instructions sought by defendant, and in the sixth paragraph of the charge of the Court.
Reversed and remanded.