194 S.W.2d 419 | Tex. App. | 1946
Appellants, excepting one person, are heirs of one William Rogers. They brought this action against various defendants, including Gravel Ridge School Community No. 22, of Nacogdoches County, and Gravel Ridge Missionary Baptist Church, to recover title and possession of a tract of approximately 9 1/2 acres out of the Elizabeth Rusk Survey in the said county. They also prayed recovery of the value of certain timber cut and removed from a part of this land, and for other relief which need not be identified in detail.
The tract of land for which appellants sue was conveyed to the said William Rogers by Mary Joiner et al., acting by and through one George F. Ingraham, attorney in fact, by a deed dated November 18, 1890. Since the disposition of this appeal depends upon the construction of this instrument, we quote it, omitting only the description of the land:
"The State of Texas County of Know All Men by Nacogdoches These Presents:
"That we, Mary Joiner, Robert Joiner and Ella Harrison and her husband, J. L. Harrison, all acting by our duly appointed and authorized attorney in fact, Geo. F. Ingraham of said County for and in consideration of Sixteen Dollars to us paid, the receipt of which is hereby acknowledged have this day bargained, sold released and conveyed and by these presents do bargain sell release and convey unto William Rogers of the County of Nacogdoches, State of Texas, the following described real estate, to-wit: * * *
"To Have And To Hold The Above described premises together with all and singular the rights and appurtenances thereto in anywise belonging unto the said William Rogers, his heirs and assigns forever in Trust the three acres of South end of said Block of land for the use and benefit of Gravel Ridge School Community Number Twenty Two of Nacogdoches County, Texas, and its successors forever the Eight and one half acres of the North end of said block of land for the use and benefit of Gravel Ridge Missionary Baptist Church, of said County and State and its successors forever. And we do hereby bind ourselves our heirs executors and administrators to warrant and forever defend all and singular the said premises unto the said William Rogers his heirs and assigns for the use and benefit of the Gravel Ridge School Community No. 22 of said County and State and said Gravel Ridge Church also of said County and State, as before herein expressed against every person whomsoever lawfully claiming or to claim the same or any part thereof, by through or under us.
"Witness our hands this 18th day of November, A.D. 1890.
"Robert Joiner "Mary Joiner "Ella Harrison and "J. L. Harrison
"Signed in presence of: By their Attorney-in-Fact "_______ Geo. F. Ingrahan *421
Approximately two acres out of the part of this tract conveyed in trust for the church has been devoted to cemetery purposes, and appellants have in effect disclaimed any proprietary interest in this cemetery; they sue for the balance of the tract conveyed to their ancestor.
The cause was tried to the court, sitting without a jury; and judgment was rendered denying appellants any relief. This judgment also declared and fixed a trust upon the title conveyed to William Rogers in the following language: "Therefore it is the order and judgment of the court that the title to the hereinafter described land is in William Rogers, his heirs and assigns, in trust for the use and benefit of defendants Gravel Ridge School Community No. 22, of Nacogdoches County, Texas, and its successors forever, and Gravel Ridge Missionary Baptist Church and its successors forever." The trial court filed findings of fact, and therein found that the School Community had been succeeded by an existing Common School District, to-wit, Harmony Common School District No. 15 of Nacogdoches County, but that the Church was still in existence. The appellants have made some question about the finding respecting the existence of the Church, but there is sufficient evidence in the record to support this finding; the fact that some of the appellants are members of the organization does not effect the matter. It also appears from the findings that when the aforesaid deed was made to William Rogers, the School Community and Church were using the land, and that they continued to do so afterwards. No school has been conducted on the land since 1936; the school conducted by the successor Common School District, namely, Harmony, is apparently located some miles distant from the land involved here. The trial court expressly found that the land had never been abandoned by the Church, and we think there is some evidence to sustain this finding, although, as will appear, said finding is immaterial.
The trial court's judgment obviously represents that court's construction of the deed from Mary Joiner et al. to William Rogers, and we agree with that construction. The instrument is not ambiguous; it conveyed title in fee simple to the said William Rogers, to be held by him in trust for the named beneficiary organizations and their successors. No intention appears therefrom to vest any personal interest in the trustee, that is, an interest not held in trust by him, and the title of the beneficiaries is not conditional. These matters will be more fully discussed in connection with appellants' Points of Error.
Under Points 1, 2 and 3, appellants say that the trial court erred in charging a trust upon the title conveyed to William Rogers because the said Rogers paid the purchase price of this land out of his own funds. They construe the deed from Mary Joiner et al. as vesting fee title in William Rogers, subject only to use of the land for school and church purposes, and say that when this use terminated, the title either reverted to or vested in full in William Rogers or appellants, or else authorized re-entry by them; and that the use referred to has in fact terminated.
Points 1, 2 and 3 are overruled. And, first, respecting the payment of the purchase price of the land: The deed hereinbefore quoted recites a consideration of $16. Appellants say, as we reconstruct their argument, that the burden of proving the existence of a trust is upon him who asserts it; that an element of this proof is a showing that the person asserting the trust paid the consideration involved; and that no trust was proven here because the evidence shows that William Rogers, and not the Church or School Community, paid the purchase price of the land. The contention is denied. The trial court's findings do not show who paid the purchase price of the land; and we doubt whether there is any competent evidence in the record as to who paid it. The only evidence on this matter appears in the testimony of Mrs. Nancy Parrish, one of appellants and a daughter of William Rogers; and her testimony seems to be nothing except the repetition of statements made to her by her father or by other members of her family at some time or times not identified. So far as this record shows, nobody except the School and *422
Church ever had any possession of this land; and under appellants' theory of the case Mrs. Parrish's testimony appears to be nothing but hearsay repetition of self-serving declarations. See Gilbert v. Odum,
The deed to Rogers manifests an intention to provide for the School Community and the Church, and their successors. Accordingly, if William Rogers paid the price of the land, this payment amounted to a donation in behalf of the named beneficiaries, and no interest in his favor, resulting or otherwise, would be inferred. As a matter of fact, there is evidence in the record that William Rogers was a member of the Church, and served as a Deacon thereof, either at the time of this conveyance or later. In Arnold v. Southern Pine Lumber Co.,
Second, respecting appellants' contention that the land was conveyed to William Rogers subject only to a stated use of the land: As hereinbefore noted, appellants argue that the deed to their ancestor should be so construed, and that the stated use has terminated, whereby they have full title. This contention is denied. It imports two elements into the deed to William Rogers which are not therein expressed, merely, (a) that Rogers took a personal proprietary interest in the land, separate from the title conveyed to him in trust, and (b) that the interest of the School Community and Church were on condition.
If Mary Joiner et al. had intended to convey to William Rogers an interest which he did not hold in trust, they would not have defined his estate in the land as one in trust, as they very clearly did in the habendum clause of their deed. The following quotation from Arnold v. Southern Pine Lumber Co.,
No condition is attached to the interests of the School Community and the Church on the face of the deed, and none will be implied. These beneficiaries took full title in equity, to the extent that such organizations may be said to have title; and said title was not conditional upon use of the land for School or Church purposes. The following decisions define the nonconditional character of the title conveyed in trust: Gabert v. Olcott,
Thus it is of no significance whether the land has continued to be used for church or school purposes.
Under Points 4 and 5 appellants have brought forward certain matters affecting their right to recover the value of the timber cut from the land; but these points have become immaterial. Appellants have asserted a private proprietary title in this action, and such title as they have exhibited is in trust. The evidence shows that the proceeds of this timber is on deposit in a Nacogdoches Bank to the credit of the Church, and that the timber was cut from the church part of the land by authority of the Church; so that there can be no error in denying appellants all relief.
This brings us to appellees' cross-assignment of error. In the trial court appellees prayed "that the fee simple title to three (3) acres of said land be adjudged in the Gravel Ridge Common School District, or its successor, and that the fee simple title to eight and one-half (8 1/2) acres of said land be adjudged in said church, in accordance with the provisions of the aforesaid deed; that the trusteeship of the said William Rogers be adjudged closed and of no further force effect," etc. They say here that the trust vested in William Rogers was a passive trust and that the trial court erred in failing to terminate said trust and vest title in the beneficiaries. This is the subject matter of their cross-assignment, and they pray here that the judgment of the trial court be reformed accordingly.
Appellees' cross-assignment must be denied. The trial court found in effect that the Gravel Ridge School Community No. 22 had been succeeded by Harmony Common School District No. 15 of Nacogdoches County; and Harmony is not a party to this suit, either by name or by district trustee. Title could not be vested in said district, or in the representatives thereof. However, this matter is of no special consequence as respects the judgment rendered; appellants have made no point of it, but have argued their appeal on the merits of their title. Turning to a consideration of the rights of the Church, we are also required to hold that title can not be adjudged in said church as appellees pray. It seems quite clear that the Gravel Ridge Missionary Baptist Church is an unincorporated religious association, and must take legal title by trustee. Methodist Episcopal Church v. Roach, Tex. Civ. App.
This disposes of all the matters assigned as error. No error appearing, the judgment of the trial court is affirmed. *569