Watts v. Wofford

COBBS, J. This was a petition for writ of certiorari by appellants against appellees, filed in the district court of Live Oak county, to have reviewed and cause to be set aside an order of the probate court of Live Oak county establishing a claim of appellee against the estate of Taylor Whitsett, deceased, for $5,000. The claim, as presented for allowance, is as follows: “To amount due to Mrs. Buena G. Wofford by said Taylor Whitsett, $5,000.00, which amount said Taylor Whitsett, on or about March 13, 1914, promised, contracted and agreed to pay said Mrs. Buena G. Wofford, for and in consideration and in satisfaction of certain equitable rights, claims and interests owned and held by said Mrs. Buena G. Wofford in and to the lands in Atascosa and Live Oak counties, Texas, which were deeded to said Taylor Whitsett by Mrs. Jane Whitsett, the mother of said Taylor and of Mrs. Buena G. Wofford, being some two thousand acres of land, or more, which interests and claims of the said Mrs, Buena G. Wofford in and to said land were recognized and admitted by said Taylor Whitsett;' the said Taylor Whitsett at the time first above mentioned promising to pay said sum within a reasonable time thereafter, to wit, at the completion of a sale of lands then being negotiated by said Taylor Whitsett, to say, not exceeding sixty days thereafter. Said equitable rights and interests of said Mrs. Buena G. Wofford in and to said land arose and existed by reason of the arrangement made between said Taylor Whitsett and his mother, Mrs. Jane Whitsett, just before the latter’s death, -and grew out of the fact that said lands were conveyed to said Taylor by his mother, lor the accommodation of said Taylor, in order •■hat he might pledge or mortgage the same and raise money thereon, but without any actual consideration being paid by said Taylor to his mother for said land, and by reason of the understanding at the time of the deed to said Taylor by Mrs. Jane Whitsett, the equitable iitle to said land remained in said Mrs. Jane Whitsett.” It was sworn to, duly passed upon, allowed and established, classified and registered as a claim against said estate. Appellants alleged that the claim was without foundation in law and no consideration shown or . existed for the alleged promise, the basis of the claim, and the promise or agreement, to the extent that it concerned the transfer of an interest in lands, was with within the statute of frauds. The case was transferred, by agreement, to and tried by the Seventy-Third district court of Bexar county. Appellees answered by general and special exceptions, raising issue of two years’ limitation in which to take case up by certiorari, and general denial. Then specially, affirmatively, and very fully set out the facts upon which the claim is predicated, to wit: “During the years 1896 and 1897, Taylor Whitsett induced his mother to convey to him some 2,600 acres of land in Live Oak county, by her deed, absolute on its face, but intended at the time by the parties to be used by him to secure the loan of money to pay off and extend an indebtedness of his and to purchase live stock with which to operate lands belonging to himself and mother, promising his mother he would pay off said liens and then reconvey same to her. It was agreed he would hold the legal title in trust for her, with the equitable or beneficial title to remain in her until the same were released from the liens he was going to create, when the legal title would be reeonveyed by him to her. He then proceeded and borrowed money on the lands for his sole purposes, benefit and use, and executed deeds of trust and mortgages thereon to secure the money he borrowed from time to time. “He never paid off any of these liens during his lifetime, but the lands were sold by his administrator after his death, and the purchase money secured therefrom was applied to those holding the said liens. The value of his mother’s equity on or about December, 1908, was estimated at about $6,000. Subsequently, on or about the 13th day of March, 1914, Taylor Whitsett, being desirous of settling his business and make payments on large sums he owed, and desirous of selling the lands or a portion thereof to relieve' himself of pressing obligations, and to settle the rights, equities and claims in and to said lands, claimed and asserted, requested the permission of his mother to sell for such purposes. Shortly before the death of his mother, she desired the equities to bi fixed and told him it was her will and desire that the money should be paid to her daughter, Mrs. Buena G. Wofford, and the amount agreed upon was $5,900, and she consented for him to sell the land. After the death of Mrs. Jane Whitsett, at his special instance and request, Mrs. Buena G. Wofford agreed to accept from him the sum of $5,000 upon the consummation of the sale of the land which he was then negotiating, and then and tiere promised, contracted and agreed with her to pay her within a reasonable time thereafter. This was never consummated, because on or about the 15th day of April, some two weeks thereafter, Taylor Whitsett died intestate.” [1 ] A jury was impaneled to try this case, but after hearing evidence introduced by ap-pellees on this claim, and after the appellees closed the case, appellants made a motion for an instructed verdict, on the ground: “That the testimony adduced by defendants was wholly insufficient to sustain the burden [323] of establishing the claim and requesting the court to instruct a verdict in their favor.” Then appellants stated they had no further testimony to offer. Appellees under the direction of the court indorsed upon said motion their joinder in the alleged demurrer, and the attorneys proceeded with the argument. The appellants by their silence and acquiescence therein became bound by the action of the court and appellees in treating the proceeding as a demurrer. Thereupon the court discharged the jury on account of said proceeding and then, after hearing the argument of both counsel, entered judgment establishing the said claim for,.$5,000 against said estate. [2] Appellants, in their brief in this court, say that “The appellants offered no testimony; in fact, from the very nature of the case, could have.offered none,” and it is recited in the judgment; “Thereupon, as soon as said defendants herein rested their case, they having been by the court, with consent of counsel for plaintiffs, permitted to open and close on the evidence and the argument before the jury, counsel for plaintiffs declined to offer any evidence herein and in writing demurred to said evidence so introduced by defendants herein in support of said claim, and, under the direction of the court, counsel for said defendants in writing joined in said demurrer to said evidence.” This demurrer to the evidence was such an admission of the facts as that the court’s ruling thereon disposed of the case. Umscheid v. Scholz, 84 Tex. 273, 16 S. W. 1065; Eberstadt v. State, 92 Tex. 94, 45 S. W. 1007. under the direction of the court the issue was joined on the demurrer, and appellants made no objection thereto, and by the action of all the parties it was made a demurrer to the evidence. But appellant was not injured by that proceeding, if it be treated as a motion to instruct, because appellants said they had no evidence to offer, and, if' the jury had not been dismissed, the result would, have been the same. [3] Appellees make strenuous objections to our considering the brief of appellants, on the ground that it is not in compliance with the rules prescribed in such cases. There is much merit in the objections, but the record raises the question of fundamental error, and we will apply no technical objection to it that would deny to appellants the benefit of their theories and authorities cited. Schaff, Receiver, v. Hill & Thompson (this day decided by this court) 238 S. W. 1037. Appellants have attacked the ruling of the court by various assignments; but as the error, if any, is fundamental, we will consider the case for all errors assigned or otherwise presented on the face of the record. [4, 5] It is true, as urged, a claim against any estate must be based upon a valid obligation supported by a consideration deemed valid in law. Was such presented here and supported by the evidence? We think so. Every presumption is in favor of such claim. This attack is made upon it more than two years thereafter. The burden is upon appellant to show its vices, if any. Hillebrant v. Burton, 17 Tex. 198. [6, 7] Taylor Whitsett borrowed from his mother the use of her land, that he might take the apparent legal title in his name and negotiate a loan thereon to secure money therefrom for his immediate uses, promising so soon as he would be able to raise money to pay off the loans he would reconvey it to her, but that the equitable title should remain in her as security for the return of the money. Olearly, as between her and her son, the absolute legal title never passed out of her, or ever would, until it might, by repudiation on the part of her son, become barred by the statute of limitation, and it would, as a matter of course, be valid in favor of those who advanced the money for the purposes stated. Her son held the legal title for his mother in trust. Such an agreement was not in violation of the statute of frauds. It was based upon a valuable consideration, for the use of his mother’s land, which he held in trust for her, to be reconveyed when he shall have paid off the liens placed thereupon by him. The land was shown to have been worth more than the claim for $5,000 presented against his estate. His mother, as she did in pursuance of her will and desire, required him to pay the debt owing to her to her daughter, his sister, for the reasons given, to which he in his lifetime agreed, obligated, and bound himself by his promises to his mother and sister to do. Can it be said, had the mother lived, and her son, Taylor, having paid off the loans, she could not, upon- his refusal, have compelled him to re-convey the land? Stafford v. Stafford, 29 Tex. Civ. App. 73, 71 S. W. 985. Or have established the agreed debt and secured a foreclosure of the lien on the land to which he held the title for her benefit? There is nothing, in the statute of frauds against the enforcement of this claim. The statute was satisfied by the conveyance of Mrs. Whitsett to her son, Taylor Whitsett. Stafford v. Stafford, supra; James v. Fulcrod, 5 Tex. 512, 55 Am. Dec. 743; Doggett v. Patterson, 18 Tex. 163; McKinley v. Wilson (Tex. Civ. App.) 96 S. W. 112; Ware v. Jones (Tex. Civ. App.) 233 S. W. 357. [8] Such contracts, however, would not be void. Shortly before his mother’s death and in a very short time before his own death, he was making efforts to sell the lands to pay off his indebtedness, and his mother, in making the agreement which seems a part of the transaction, required him to agree that he would pay the agreed value of the land, to wit, $5,000, to Mrs. Wofford, to whom she desired the 'money to go. No one can deny that the mother was within her own [324] rights in making this provision for her daughter. She was acting within the full scope of her rights, and he was, in good faith and in good morals, upon a valid consideration, binding himself to perform the obligation. Por him to have acted otherwise and repudiated the obligation' to a trustful mother would have been unconscionable. If such contracts are not favored, still they are not void, and still would be sufficient to support a new promise. Cotton States Building Co. v. Jones, 94 Tex. 501, 62 S. W. 741. [9] The claim was presented and duly approved by the judge of the county court and was not void on its face, and not subject to be denounced as prohibited by the statute of frauds or barred by the statute of limitation. The contention of appellee, and so pleaded, ,is that, under article 733, R. S., this proceeding should have been brought within two years after the action of the probate court thereon. Appellants’ answer to that is that one of them is a minor, but offered no proof to sustain it. [1D] The pleadings and proof show a binding claim against the estate. Garrett, Adm’r, v. Gaines, 6 Tex. 435. Taylor Whitsett had the use and benefit of his mother’s land and owed her for it. They adjusted the matter by giving the right to her son to pay off his debts. Up to that time she only allowed him to borrow money on it. By this agreement, just before their deaths, they altered the terms of the original agreement by requiring him to pay his sister the amount agreed upon as its purchase price, §5,000, in case he sold the land in pursuance of his mother’s permission, and that makes no difference if the sale was not made before his death by him; but it was sold to pay off the liens thereafter, which entitled her to the fixed amount agreed upon. [11] Now, the basis of this suit was presented by Mrs. Wofford in a claim growing out of a transaction between the mother and son, as related, and the statement of the claim so presented and allowed is sufficient. Altgelt v. Elmendorf (Tex. Civ. App.) 86 S. W. 41; Garrett, Adm’r, v. Gaines, supra. [12] Complaint is made that appellees did not rely wholly upon the claim as presented for allowance in the probate court, but pleaded affirmatively independent facts forming the basis of the claim unsworn to. We see no error in this procedure. The claim filed in the probate court is the one looked to as the foundation of this suit, and it is sufficient for that purpose. Altgelt v. Elmendorf, supra. Such trials in the district court are de novo, and there is nothing to prevent responsive pleadings or the introduction of evidence to support the cause of action, if primarily a proper claim had been presented through and acted upon by the probate court. We find no reversible error in the ruling of the court, and the judgment is affirmed. Footnotes [1] @=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes