delivered the opinion for the Court.
This is a suit by petitioner, Mrs. Mina Heissner Sevine, against her sister, respondent Bertha Heissner, for an accounting of one-half of all money received by respondent out of property, a one-half interest in which is claimed by petitioner. The prayer was for an accounting and for judgment for $30,000.00 and such further sums as the accounting might disclose were due the petitioner, and for the establishment of a lien upon certain real estate to secure the amount found due. The basis of the suit is that petitioner owns a one-half interest in real and personal property standing in the name of respondent, and that respondent holds petitioner’s half interest as trustee. While the prayer did not seek a decree vesting title to any portion of the property in petitioner, still her cause of action is based upon the ground that respondent was trustee as to petitioner’s half interest. When petitioner had introduced her evidence, the trial court, upon motion of respondent, withdrew the case from the jury and rendered judgment that petitioner take nothing. That judgment was affirmed by the Court of Civil Appeals. 220 S. W. (2d) 704.
On the trial of the case petitioner introduced a final order of partition and distribution of the estate of Roger Putnam entered in the county court of Jim Wells County, the court in which the estate was administered. That decree recited:
“After hearing the statement of counsel and considering the evidence submitted, the Court is of the opinion and finds: (a) That Roger Putnam died intestate and the persons entitled to his estate as his heirs at law are Carl Putnam, a minor, who has had his disabilities as a minor removed by the District Court of Travis County, Texas, and Will Putnam, an adult; (b) That Carl Putnam and Will Putnam have transferred and assigned an undivided one-third interest in all property and claims of said estate, to Bertha Heissner, an adult feme sole; (c) That said parties are entitled to share in the partition and distribution of said estate in the following proportions; Bertha Heissner, one-third, Carl Putnam, one-third, and Will Putnam, one-third; (d) That all claims due and owing by the estate and required by law to be paid, have been paid, that more than twelve months have elapsed since original administration was granted, and the estate has been fully administered as provided by law;*348 (e) That no contest or objection to the settlement and distribution has been filed or made by any person; (f) That the parties interested in the estate have agreed upon a partition and distribution thereof and have agreed that the following decree be entered, to-wit: * * *.”
By the decree there was set aside and awarded to Bertha Heissner and Carl Putnam an oil and gas lease covering land in Bexar County, a cabin in Jim Wells County, different items of personal property, stock in corporations, and 822 acres of land in Travis County, described in six tracts. The decree set aside to Will Putnam a number of tracts of real estate, some mineral interests, and personal property, all described in the decree. The decree provided that respondent and Carl Putnam should pay off and discharge the balance due the Federal Land Bank of Houston under its deed of trust upon the Travis County real estate. Petitioner also offered a deed, bearing the same date as the decree, executed by Will Putnam and his wife, Cora Putnam, conveying to respondent and Carl Putnam all their right, title and interest in and to the undivided one-third interest of Will Putnam in that real estate. The consideration recited was ten dollars cash “and as part of the settlement of the estate of Roger Putnam, deceased.” Following the warranty, the deed recited that respondent and Carl Putnam agreed to assume and pay off the balance due the Federal Land Bank of Houston under the deed of trust held by it on the land.
The trial court sustained objections of respondent to the oral testimony sought to be introduced by petitioner to establish the trust. In this we think the court erred. Since the whole basis of petitioner’s suit was that the trust agreement was valid, no judgment could have been rendered in her favor after the oral testimony was excluded, and the trial court accordingly rendered judgment against her. The Court of Civil Appeals was of the view that the evidence offered by petitioner, if found true, gave rise to a constructive trust under the principles announced in Mills v. Gray, 147 Texas 33, 210 S. W. (2d) 985, but nevertheless affirmed the judgment of the trial court on the ground that parol evidence is not admissible to impose upon the grantee in a deed a parol trust in respect to property conveyed if the consideration upon which the deed is based is contractual, citing Kidd v. Young, 144 Texas 322, 190 S. W. (2d) 65. It was the court’s view that the obligation to discharge the indebtedness against the land was part of the consideration for its acquisition; that that obligation was contractual in nature and could not therefore be varied by parol.
Neither- does the rule that parol evidence is not admissible to engraft a trust upon land acquired by a deed based upon a contractual consideration have any application. It is impossible to determine from the parol testimony just how respondent acquired an interest in Roger Putnam’s estate, but it is shown that such interest was acquired by a transfer or assignment recognized as sufficient to pass title. She did not acquire it by the probate decree. That decree, the recitals of-which are not questioned by either party, but are relied upon by both, contains this finding: “that Carl Putnam and Will Putnam have transferred and assigned an undivided one-third interest in all property and claims of said estate to Bertha Heissner, an adult feme sole.” There is no showing that as a consideration for that transfer and assignment, which had theretofore been made, Bertha Heissner assumed any obligation. What the probate court did was to enter a decree distributing the assets of that estate to those to whom it already belonged.
Bertha Heissner acquired no title by the deed from Will Putnam and wife to her and Carl Putnam. That deed, which related only to a portion of the estate, was executed on the date of the probate decree and was evidently nothing more than a partition deed. Neither the decree nor the deed conveyed title to any of this property. The effect of the decree was to dissolve the tenancy in common and locate the rights of the parties in distinct portions of the property, extinguishing those
It is immaterial what obligation respondent may have assumed in the probate decree or the partition deed. Having acquired a one-third interest in the estate of Roger Putnam prior to the decree, rather than by virtue of it or the deed, she could not defeat the right of petitioner to assert a parol trust in a portion of it by later assuming an obligation with respect thereto.
The judgments of the courts below are reversed, and the cause is remanded to the district court.
Opinion delivered November 2, 1949.
Rehearing overruled November 30, 1949.