152 S.W. 693 | Tex. App. | 1912
There was judgment for the plaintiff for the recovery of the lot, and for $600 rents against Lula Williams and Smith Ellis and their sureties on the replevy bond.
1. As to the latter objection, it is not tenable for the reason that it is well settled in this state that a trust may be ingrafted by parol evidence upon a written instrument. James v. Fulcrod,
2. It will be seen from the above statement that the title to the lot in controversy prior to December 29, 1905, was in the defendant Smith Ellis. In order to vest said title in William Johnson, it was necessary to show, not only that said Ellis had executed a deed to said Johnson, but also that the same was delivered.
The record of said deed was presumptive, but not conclusive, evidence of the delivery of the same. Had the proffered testimony been admitted, it would have shown that the deed from Ellis to Johnson was never delivered; and also would have shown that the legal title therein conveyed was held in trust by said Johnson for said Lula Williams.
If any part of this testimony was admissible, the court erred in sustaining the objection thereto, as the objection was made to the whole of said testimony. Wells v. Hobbs,
3. That portion of the proffered testimony which showed that Ellis never delivered the deed to Johnson did not relate to a transaction between said Ellis and Johnson, but solely as to what Johnson himself did with reference to said deed, and therefore should have been admitted. Potter v. Wheat,
4. That part of the proffered testimony by which it was offered to show that Lula Williams paid the purchase money for said lot, and that the deed from Ellis to Johnson was delivered to her, did not relate to a transaction with Johnson, although he was present, but related solely to a transaction between Ellis and said Lula Williams, for which reason said testimony should have been admitted.
5. Appellant contends that the whole of said testimony, including that part which related to the transaction between Ellis and Johnson, should have been admitted, for the reason that Ellis, having filed a disclaimer, was not a real party to the suit, citing in support of this contention Markham v. Carothers,
It is true that, where a party in an action of trespass to try title files a disclaimer, he is not to be considered as any longer a party to the suit, unless, in addition to the land, it is sought to recover damages.
In this case the petition asked for rents as damages, and the court awarded judgment for $600 for such rents, which amount is sustained by the evidence. Also by executing the replevy bond, said Ellis made himself liable for said rents, for which reason his testimony should not have been received in this case as to any transaction between himself and the deceased William Johnson, relative to the lot sued for.
6. We overrule appellant's assignment as to the admissibility of said testimony on the ground that Ellis was "an opposite party" to Lula Williams in this suit.
For the error committed by the court in excluding the testimony of Ellis with reference to retaining possession of said deed, and never having delivered it to Johnson, the delivery of the same to Lula Williams, and the payment of the purchase money by said Williams, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded