25 Tex. 400 | Tex. | 1860
The principal object of the suit was to establish and enforce a trust, for the benefit of the plaintiff, in the land in controversy. Both parties derived their ■ pretensions of title from the same source, and by the same conveyance; and the object of the suit was to establish that the legal title vested in the defendant by that conveyance was held by him in trust for the plaintiff, and to compel the execution of the trust. It was not an ordinary action of trespass to try title, but a suit to enforce the equitable title against the trustee of the legal estate. It was not a case, therefore, in which it was incumbent on the plaintiff to deraign title from the government, and where he must recover upon the strength of his title. As between the parties, it was enough for the plaintiff to show a purchase with his money for his benefit, and that the conveyance was taken in the name of the defendant. The consequence of such proof is, that the defendant holds the legal estate in trust for the plaintiff, who may maintain the action to enforce the trust, without taking upon himself to show that the title in question in the suit is the paramount title to the land. That is not the question ■ at issue in the case. It is not, therefore, a well-founded objection to the recovery that the plaintiff did not deraign title from the government.
There is nothing in the objection to the testimony of the witnesses Clark and Green, as to what transpired while the negotiation for the purchase of the land was pending. It is settled by repeated decisions of this court that trusts in lands, as well those which are created by express contract as those which are implied and result by construction of law, are not within the provision of the statute of frauds, and consequently need not be evidenced by writing. (James v. Fulcrod, 5 Tex. R., 512; Mead v. Randolph, 8 Id., 191.) It was competent for the plaintiff to prove.by parol that the purchase was in fact made by him, and for his benefit, though the deed was taken in the name of the defendant. .The conversations objected to, which occurred during the negotiations for the purchase, were admissible as a part of the res gestae.
There is no error in the charge of the court. It does not appear by the record, that any of the charges which were refused by the court were asked upon the final trial. It is therefore unnecessary
• Judgment affirmed.
