Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-02-01
COURT OF APPEALS.
Full Text Of Decisions Rendered in tho Fort
Worth District

4
ID. Turlton, chief justice; III. q. Head
and !. w. Stephens, associate justices;
w. l.. Huff, clerk.
No. II. v &. Holland. exeeutor 81 al,
appellants. vs.. A. j. Farthing, appellee.
Appeal from Cooke county.
CONCLUSIONS OF FACT.
This case having been tried in the
court below by the Judge without a jury
his conclusions Of fact, which we find
sustained by the evidence, may be briefly
stated az follows:
On oct. q 1873. J. A. Trueloyc, then
an unmarried man, purchased The lot in
controversy from J. NJ. Lindsay paying
therefor the sum Of $3.50. The deed
was first made to said Huel0ye, but
on the same day he had Lindsay to erase
his own initials and insert those of his
maiden sister H. J. Trucloye. The deed
when 80 changed appeared upon its face
10 convey TO the grantee, H. j. Truelove.
for a cash consideration the title TO said
lot in fee simple. At the time Of the
making of this deed however, 1t was
expressly agreed by j. 4. Truelove und
bis sisters y. j. Trueloyc aud \. j.
Townsend lthe last named being
widow that the said H. !. TruelJve
should hold said lot In trust upon the
following terms to-wt That She aud
her said sister should have the right 10
live thereon as their home during their
lives or such less tine as they might see
proper 90 occupy IL. but upon their death
or abandonment Of the same as u home,
it was TO be- the property Of the said j.
a. Truplove. In 1881. y. j. Trucloye
died leaving will bequeuthng said lot
one-hnlf to said j. A. TruulOve aud the
remainder TO appellant Holland 0s her
pApCutriN. To be- used in improving a
lot ia the Gainesville cemetery. Upon
such denth, however, (the said y. q.
Townsend having long previously abun-
doncd thc loO the said j. a. 1ruclove
took possession OF the same asserting his
right thereto under the terms hcrpiube-
fore set forth and conveyed IL to appellee
Farthing Appellants claim title under
the will and IA heirs Of said H. j. True
love. The court found the trust Ia favor
Of j, A. Tucoye sufficiently established
10y the evidence aud rendered judgment
IN favor of appellee claiming thcrcun-
der
That an express trust Is not within our
statute of frauds and can therefore be-
established by pnrol evidence has long
been settled boy purultpd decisions Ia this
state. Mend W. Randolph. : Texas, lO1;
Bailey w.. Harris. 10 Texas. 100; Leakey
w. Guntcr. - Texas, 400: Van Dever
vs. Freeman. 20 Texas, 33l; Clark vs.
Haynic, ~ Texas. oil; NorllcCt w. Nc
Can. 80 Texas 326: RrOtherton vs.
We0thcrshy. ~ Texas Al; Neylund vs.
Bnndy % 'IcNus, al.
While we have been unable To ind any
case iu this state la which the agree
ucnt creating trust contemplated the
occupation Of the land by The trustee
during his life, we are unable TO distin.
guish such uu agreement iu principle
from that recognized as valid In num-
Der of the cpsps cited above. I'm the ease
OF Johnson W. Johnson, lO Minnesota,
Oh, the facts We're quite similar 10 those
developed by this record and In that case
the court found against the trust, but We
think the Reasons given for the decision
under the statute of that state would 30
far To- maintain It's validity i'm this. The
statute of that state provides: "...,..
that no trust or power over or concern.
log lands or in any manner relating
thereto. shall hereafter he created, grant
ed, assigned, surrendered or declared,
unless by act Ur operation of INV, or 10y
decd or Conveyance iu writing. sub.
scribed by the parties, etc Brown on
statute of fraud, fourth edition, 6U6; aud
iu the case above referred to the court
after stating the facts, says: This
state of facts does not give rise To arE
express trust IN favor of the plaintiff Dee
cause there rs no writing, declaring the
same; aud there iR no implied or RESULT
ing trust, because the statute declares
that when a grant Tor q valuable con-
sdrratiou shalt be- mndc To one person
and the consideration therefor shall hc
suit In favor of the person by whom such
payment shall be made; but the title
shall vest Ia the person named No the
trustee IN such conveyance subject only
10 the provisions uf the next section As
we have no statute similar 10 that In
Minnesota this cusc SO much relied upon
by appellants, we think mstend of being
AN authority In their favor is strongly
against thpm
by reference To our conclusions Of fact
it will be- seen that we are of opinion that
the evidence of the trust in this ease was
sufficient To- sustain the finding of the
court below in its favor. Baylor vs..
lupf, 81 Texas, 63I.
What we have said sufficiently IN
dictates our views upon the other qucs.
tous raised ia The assignment of appel
lauts.
Let the Judgment Of the court below bc
in all things affirmed. READ,
tSignCdJ Associate Justice.
No I'd. - swearngen. plalnna in err
r0r. vs. n, g. Wilson, defendant la error.
Appeal from Wichtu county.
STATEMENT OF CASE.
Appellee r. q, Wilson, sued G. W Israel
& Go, Ia he district court OF WicmH
county, Tor u debt amounting 20 SlSiSS,,
and on tile iGth day of December made ~.
hdavit aud gave bond Co obtain wiits ~
punishment against j. =. Craig, the state
Rational bank of Fort Worth and the city
3O,h day 81 December 1851 tlyd an addi.
tlunal affidavit and application IN obtain
writ OF gurulshWput AGAINST appellant
-. ~. Swcarlngrn, whose rogdcuCc was AL
legged Ia De in Hurdeupn county, Tex but
To obtain this garuiehmeut no additional
bond WIS giveu.
Appellant hist Fled his motion 10 quash
the guruishWt ut against him upon several
grounds among Witch wns the failure of
appellee 90 give bond at the time The gar
uhhmcut against him Nvas sued ont This
motion does not appear iinm the transcript
tp have boen acted upon. unless the follow
ing entry therein SHOULD De- taken ~ a
part uf the record 90 show thar mi, had
been done, tu-wlt:
so. $50 r. g. Wilson VS.. u. u. Swear.
mgcu, garnshcc. lohh ANA Boyd Motion
"a uwsh writ of garnishmcut ana dismiss
suit Noy. -. $50, Ovcuulpl 90 3w.
ON April "a 1855, appellant answered fine
writ of establishment uud after denying amy
Indebtedness to ihc defendants or clthcr OF
them iu the usual form atldtd 10 his am
sw ~ thu full0wiugi "prfeudaut. d. Id
Sweurlngcu, tho garulshce herein further
answering sayr That ON or about the
day ~ May, 1856. be purchased from one
John Craig, who was acting as assignee az
4, W lsrral g Co., or u. ~ isrnw ana a.
w. Israel, cprtan bank fixtures fnr tle
sum ~ ssh, ana thproupon enyp his pronl
ssory note fOr said SUN. pityahle To- Snil
john A. craig ms nslgnrp OF a. " Isnei N