
    Mead v. Randolph.
    Parol evidence is admissible to prove that a deed or instrument absolute on its face was executed and delivered upon certain trusts not reduced to writing, and which the grantee promised to perform; and the same may be established. (Note 43.)
    The doctrine that a deed absolute upon its face may be shown by parol proof to have been intended merely a« a security for the paymentjof money recognized. (Note 44.)
    Upon the same principle or basis is founded the rule which enjoins the specific performance of any promise by which another is prevented from performing an intended act, or through which he omits to make certain arrangements, provisions, or gifts, by will or otherwise, for other persons. j
    The only contract in relation to lands which is required by our statute of frauds and fraudulent conveyances to be in writing is the contract for their sale. Express trusts in relation to lands stand upon the samo footing with implied or constructive trusts. The facts from which resulting trusts arise and tlie special contracts by which express trusts are created may alike be proved by parol evidence. (Note 45.)
    The rules in relation to the proof of implied or constructive trusts might doubtless be applied advantageously to the proof of express parol trusts. It must be clear and satisfactory, and such as is reasonably attainable under the circumstances of the case. (Note 46.)
    In a suit for specific performance, if the consideration of the contract be impeached by competent and credible evidence, it must he sustained byrebutting proof, or the bill will, according to the established rules of chancery practice, be dismissed; and where equity would not decree, a specific performance, the jury ought not to find for the plaintiff m an action for specific performance under our system.
    Where an action was brought for specific performance more than eight years after the date of tlie bond for title and the assignment of it, it was said that the unexplained staleness of the claim might be plausibly urged as a ground for the refusal of the prayer of the petition; that, to say.tho least, it throw suspicion upon its meritoriousness.
    Error from Anderson. This is a suit for specific performance. The plaintiff, Randolph, administrator of one Elias Moore, deceased, averred that in the year 1838 one John McCoy sold to tlie defendant, M. P. Mead, a tract of one hundred and sixty acres of land, and executed a title bond for a valuable consideration, and that tlie said title bond was, for a valuable and bona fide consideration, paid by tlie said Moore to tlie said Mead, transferred some time after its execution to the said Moore by tlie said Mead, by means of which the said Moore in his lifetime and the petitioner since his death became entitled to all tlie legal and equitable interest in tlie said bond, and that neither the said McCoy nor the said Mead has as yet made a bona fide weed or title for the said land ; that the bond lias fallen into the hands of (lie said Mead, without the consent of either Moore in his lifetime or of the petitioner ; that tlie same lias not been canceled, and that tlie said Mead’s possession thereof is contrary to law, lie not having paid any consideration for the same. Tlie plaintiff prays performance of tlie conditions of the bond and that a title be made to him.'
    Tiie defendant demurred, and answered, admitting tlie execution of the title bond, as stated in tlie petition, and filing- a copy of the said bond as an exhibit, lie admitted his assignment to the plainfllPs intestate, as indorsed on said bond, but averred that the said assignment was not intended to vest any title to the said land in the said Moore, except in trust for tlie benefit of defendant and his children, under tlie following circumstances and inducements: Tlie defendant preludes a statement of the transaction by a historical narrative, to the effect that lie had married a daughter, now deceased, of tlie said Moore, leaving three children surviving her; that Moore and (lie defendant came to Texas together to seek homes; that tiie defendant purchased the laud, paid for it with ills own funds, and settled on it before tlie date of the bond, and has made valuable unproveni'-nts thereon, and lias for many years occupied the said land; that about tiie 4th day of March, 183S, the defendant was compelled by tlie hostilities of the Indians to abandon tlie premises, and that having engaged to go to Alabama and being- in bad health, lie desired to constitute his father-in-law, the said Moore, his agent during his absence, to obtain from McOoy a title for tlie said land for the benefit of the defendant, if lie. returned, or, in case of tlie deatli of defendant during his absence, then for tiie benefit of his children; that it was agreed between the said Moore and tiie defendant that, if the latter died during- his absence, the said Moore should have eighty acres, or one-half of tlie land, for the raising of the children, and that no consideration was paid or stipulated to be received for the said sale of tlie land; that the defendant returned to Texas in July, 1838, and that the said Moore then delivered back to the defendant the said bond and assignment, and that in tlie month of October, in the same year, when about leaving again for Alabama to bring his own children and Moore’s family to Texas, he, for the purpose aforesaid, again delivered the said bond to tlie said Moore, tlie latter agreeing to remain in Texas and make arrangements for the reception of both families, all intending to reside together; that Moore some time after-1 wards also went to Alabama,"and started with both families for Texas, Leaving' the defendant to wind up some business; that Moore stopped on the road to make a crop, and there died; that some time subsequently, in 1840, tlie defendant removed the families to Texas; that the said bond was by the said Moore, previous to his departure from Texas, left in tlie possession of one John Grigsby, who died shortly after Moore’s departure from Texas; that tlie bond was not heard of for several years, but was subsequently accidentally found by Crawford Grigsby among his father’s papers; that the said Crawford Grigsby, (now also dead,) being one of the witnesses to the assignment, after a conversation with James Madden, the other attesting witness, (who is also dead,) and with Mrs. Moore, the widow of the said E. Moore, relative to the bond and the assignment, concluded, with the concurrence of the widow and the said Madden, that the bond was the property of the defendant, and it was accordingly surrendered, and has ever since remained in his possession. And tlie defendant prays that tlie said assignment may be canceled and that this defendant may be dismissed, &e.
    On motion of the plaintiff, all that portion of defendant’s answer which averred that tlie assignment from the defendant to Moore was made upon trust or for other purposes than those therein expressed was stricken out.
    The jury found the allegations in tlie petition to he true, and there was a decree for a conveyance and for a writ of possession.
    There was a motion for a new trial on several grounds, among which was the alleged error in charging that tlie jury must disregard ail evidence tending to show that the assignment of Mead was conditional and in trust for his ultimate benefit, and did not absolutely vest his interest in the said Moore except so far as the consideration of the said assignments might be impeached l>y such evidence, and also upon the ground of newty-discovWed evidence. This evi- * deuce was to the effect that the witness had held a conversation with Moore, in 1838, about tlie title to the land, and that Moore stated lie was living upon the laud which Mead had boughtfrom McCoy, and that he had empowered him to get a title from McCoy, and that this was the land on which the defendant now lived. Tlie motion for a new trial was overruled.
    Tlie defendant, on the trial, proved by I). H. Edens that lie had lived on the land for eight or nine years; that he had lived on it ten or twelve years since, but abandoned it fora year or two on account of Indian hostilities; that Moore also lived on the land at tlie time of Mead’s first residence there, but left it when Mead did, and never returned, having died in Tennessee about ten years ago; that the widow of tlie said Moore settled on tlie same laud about tlie time •of Mead’s return to it, and that she and her family resided there until her deatti in 1842.
    Lucinda Madden, in answer to interrogatories, deposed that the assignment . was made at the house of her husband, James Madden; that from tlie statements of Mead to the witnesses of tlie assignment, she understood it (o be a bond which had been executed from a certain John McCoy to said Mead for a certain tract of land, being the same on which Mead now lives; that. Mead said lie was going away from the country on business, and that if lie never got back half of the land belonged to Moore and half to Mead’s children, •and that Mead said he was merely making the assignment so that in case he never got back Moore might get a title for the land, for he wanted Moore to raise his children, and that Moore replied his children should be raised anyhow. There was also proof that Mead, since the death of Mrs. Moore, had rented oust the land, and had given corn to a son of Mrs. Moore for the support of his sisters, and that Mead had married a daughter of Moore, as stated in the answer. Prom a bill of exceptions it appeared that the judge charged the jury that they must disregard so much of the testimony of Mrs. Madden as went to impair the force and effect of the assignment by defendant Mead to Moore in any other point of view than in reference to the consideration of the said assignment, which the court charged was fully open to impeachment by parol proof.
    Among other grounds, it was assigned for error—
    1st. That the court erred in rejecting a part of Mrs. Madden’s testimony.
    2d. In striking out a portion of defendant’s answer.
    3d. In overruling the motion for a new trial.
    
      T. J. Jennings, for plaintiff in error. *
    
      Cravens and Perry, for defendant in error.
   Hemphill, Ch. J.

The exclusion of a portion of Mrs. Madden’s testimony and of certain averments of the answer will be considered together. The evidence would have supported these allegations had they been permitted to stand; but being rejected, there was no error in the exclusion of the testimony. On considering the point presented I will barely premise that the transaction between the defendant and the deceased has manifestly been regarded by the parties, their counsel, and the court below, and has been discussed here by counsel, as if it were unaffected by the principles of Spanish jurisprudence, and as controlled by the common law, witli its statutory modifications; and I purpose, in the investigation, to subject it to the like test.

It seems, then, now to be beyond questiou that parol evidence is admissible to prove that a deed or instrument, absolute on its face, was executed and delivered upon certain trusts, not reduced to writing, and which the grantee promised to perform, and that the same may be established. In Carter v. Carter, 5 Tex. R., it is said to be the settled doctrine that a deed absolute on its face will be valid and effectual as a mortgage between the parties if it was intended by them to be a security for a debt; that the character of the conveyance will bo determined by the clear and certain intention of the parties, and that parol evidence is admissible to show what that intentiou really was. The same principle was ruled in Stamper v. Johnson, 3 Tex. R. In Bishop’s Heirs v. The Adm’r and Heirs of Bishop, 13 Ala. R., N. S., 475, it is hold to be beyond doubt that, though a deed or bill of sale be absolute on its face, parol proof may be received that it was intended as a mortgage, or that it was executed and delivered upon certain trusts not reduced to writing but existing in parol, and which the grantee or donor promised to perform, and that these trusts may be shown by parol proof, and a court of equity will decree their execution ; and in support of these positions reference was made to Kennedy’s Heirs v. Kennedy’s Heirs, 2 Ala. R., 589, and Sledge v. Clopton, 6 Ala. R. The ground for the admission of such evidence is, that wrong, through mistake, surprise, or fraud, may not be perpetrated.

The trust existing in parol is established t.o prevent the fraudulent use of the deed or written instrument; for, in the language of the court in the case cited, though there be no fraud in the execution of the deed, yet if it be after-wards converted to a fraudulent purpose, or to one wholly different from that intended by both parties at the time of its execution, equity ought to interpose and prevent such an improper use and establish the trust for which it was executed. Questions in relation to the proof and enforcement of trusts and confidences created by parol, on the execution of written instruments, have not so frequently arisen as on the admissibility of parol evidence to establish that a deed is not, as it purports on its face, absolute but only conditional, and intended as a mere security for a debt. But the admission of such evidence in both cases rests on the same principle. If admissible in one, it cannot be excluded in the other; and if sufficient to establish the fact in either case, it must be followed by its corresponding legal effect.

Upon the same principle or basis is founded the rule which enjoins the specific performance of any promise by which another is prevented from performing an intended act, or through which he omits to make certain arrangements, provisions, or gifts, by will or otherwise, for other persons. Such provisions are enforced, though they constitute a parol creation of a trust contrary to the statute of frauds, for it would be a fraud upon others to permit the promissors to derive a benefit from such breach of duty or obligation. Thus, for example, where an executor promised a testator to pay a legacy, and told the testator he need not put it into his will, he was decreed specifically to perform it, (2 Ves. and B., 262; 11 Ves., 638;) or where a testator was about altering his will for fear that there would not be assets sufficient to pay all the legacies, and his heir at law persuaded him not to alter it, promising to pay all the legacies, he was decreed specifically to perform his promise. (2 Story, Eq., § 781, and cases cited.) No distinction can be drawn between the force of an obligation or promise by which the execution of a deed or will in favor of another has been prevented and that of a promise ou the faith of which a deed or will has been executed. If one creates a legal trust or charge, so must the other. One lias prevented a deed or will from being executed in favor of a third person, and the other has induced its execution; and the beneficiaries of each are equally entitled to a specific performance of the respective promises, and the breach of the obligation in either case is alike injurious and fraudulent on third parties. (13 Ala'. It.. 484.)

I have hitherto examined this point as if the statute of frauds and perjuries of 29 C., 2 c. 3, or one containing similar provisions in relation to the creation and proof of trusts in lands was in force in this State. But such is not the fact. There is no provision in our statutes similar to that found in the 7th section of the statute of frauds and perjuries, which enacts that all declarations or creations of trusts and confidences of any lands or tenements or hereditaments shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust or by his last will in writing. From this provision resulting or implied trusts are excepted; and it is further declared, section 9th, that all assignments of trusts or confidences shall be in writing. No such statutory provisions are in force in this State. The declaration or creation of trusts stands in this State as it did at common law in England before the passage of the statute of frauds and perjuries. This subject was considered in the case of James v. Fulcrod, decided at Galveston, Jan. Term, 1851, (5 Tex. R., 512,) and it was there held that the only contract in relation to lands which was required to be in writing by the statute of frauds and fraudulent conveyances was the contract for their sale; that express trusts in relation to lands stand upon the same footing with implied or constructive trusts; that the facts from which resulting trusts arise and the special contracts by which express trusts are created may alike be proved by parol evidence. If, then, in statutes which declare that all trusts and confidences of land not expressed in writing shall be utterly void and of no effect — such trusts, though created by parol, are enforced upon the ground that by such action the object of the statutes, viz, the suppression of frauds, will be more effectually accomplished — upon how much more impregnable though not more just grounds can the like trusts claim protection and specific execution from the courts in this State? No trammels are imposed by our laws (relative to such trusts) upon the judicial action. They are legal in their creation and proof. They rest for the sanction of courts of justice upon their intrinsic merits. They differ in no respect from other contracts authorized bylaw; and if meritorious, they can claim observance and fulfilment upon the grounds which would be sufficient to establish the like contracts if expressed in writing. A greater amount and more certainty of proof might be required for a parol than a written contract, but they are"equally sanctioned by law and entitled to its supporting power. In onr judicial action upon such contracts wo arc not restricted to the narrow limits imposed upon courts in other States, and to assign as the sole ground of justification that such contracts, though forbidden by statutes, must be enforced, or otherwise the, very object of the statute would be defeated, and frauds, instead of being suppressed, would ho encouraged and sustained.

IVhat evidence shall he sufficient to establish such trusts it is not my purpose to discuss. The rules in relation, to implied or constructive trusts might doubtless be applied advantageously to the proof of express parol trusts. It must be clear and satisfactory, and such as eonld be reasonably attainable under the circumstances of the case. In the case under review the assignee, his widow, and tiie witnesses to the assignment are all dead. From the somewhat transient character of the population of that day, the vicissitudes of frontier life exposed to savage warfare, but few living persons could probably be found to explain a private transaction occurring twelve or fourteen years since. But I will not prolong these observations, lior anticipate questions which may arise in the future progress of the cause. Upon the whole, we are of opinion that there was an error in striking out such portion of the defendant’s answer as charged that the transfer from Mead to Moore was upon the trust set forth in the answer, and upon these being reinstated, the testimony of Mrs. Madden would of course be admissible.

But, independent of this ground, we are of opinion that the verdict of tlie jury was contrary to the evidence. One of the issues raised by the pleadings was as to the consideration upon which the assignment was made. A valuable consideration was charged to have been paid, and tills was denied. Courts of equity will not lend their aid to enforce contracts not founded on adequate consideration. The vendee or assignee must have paid the purchase-money or the consideration before he can demand performance of the contracts. If the consideration be impeached by competent and credible evidence, it must be sustained by rebutting proof, or the petition for specific performance would, according to the established rules of chancery practice, be dismissed. Row, there is not» partióte of evidence in this case or in any of its circumstances which would induce tlie belief that any consideration had ever been advanced by tlie assignee, or that in fact he had bought and paid for the laud, except such evidence as appeared on tiie face of the instrument itself. It is admitted* and charged by tlie plaintiff that the land was originally purchased and paid for by Mead. Ever since that purchase, at least until 1842, as appears from the record, both of the families lived upon the land. Ro attempt was made by tlie assignee or liis surviving widow, equally interested with tlie husband in the purchase, to claim under the assignment. The families, for aught that appears, lived in concord. The contract upon which this suit is brought was buried in the receptacle of forgotten things, when suddenly -a stranger, at least he has not the family name, is invested with administration, six or seven years after the death of the intestate and more than eight since tlie date of tlie assignment, and two days before the final confirmation of his appointment as administrator this suit is commenced. Tlie unexplained stateness of tiie claim might be plausibly urged as a ground for the refusal of the prayer of the petition. (2 Story Eq., § 571.) To say the least, it throws suspicion upon its meritoriousness. Since its inception many of tlie witnesses who could speak to the subject have been swept away. Time since then lias obliterated trom the recollection of the survivors many of tlie events once familiarly known. Ro reason can be gleaned from the record for a delay so detrimental to the defendant and so exceedingly advantageous to tlie plaintiff, as by it the number of witnesses who by possibility could be capable of explaining the transaction is constantly diminishing.

It is under such circumstances that the testimony of Mrs. Madden is introduced ; and though she does not expressly declare that no money was paid, as her attention was not directed to that special fact, yet lier evidence is entirely incompatible with the idea that any money was paid or that the assignment ■was made with any other inducements or for any other purchase than those expressed in her testimony. Those are repugnant to the notion that any money was or could have been advanced. If Mrs. Madden bo-worthy of belief, if site be a credible witness, upon her testimony, in conjunction with other circumstances as appearing- upou the record, we must held the verdict to be contrary to the evidence, and as such should be set aside. The finding of the jury may possibly be explained from some misapprehension of the charge of the court and from a want of discrimination between the two aspects of the testimony of Mrs. Madden — one of which went to establish the trust, and the other showed, in effect, that no consideration could have been passed between the parties. The testimony being excluded by the court in one of its bearings, was probably rejected by the jury altogether. We are of opinion, therefore, that there was error in overruling the motion for a new trial.

Note 43. — Miller v. Thatcher, 9 T-482; McClennv v. Floyd, 10 T-, 159; Caney v. Dupree, 21 T.,211; Grooms o. Rust, 27 T., 231; Ruffier v. Womack, 30 T., 332; Johnson v. Delaney, 33 T, 42; Gibbs v. Penny, 43 T„ 560.

• Note 44. — Chilson v. Reeves, 29 T., 275.

Note 45. — Leakey v. Gunter, 25 T., 400; Grooms v. Rust, 27 T., 231.

Note 46. — Vandever v. Freeman, 20 T., 333; Massey v. Massey, 20 T.; 134.

It has become unnecessary to consider the other ground for a new trial, viz, that of newly-discovered evidence. Even on that ground the motion should have been sustained. These ancient transactions are involved in obscurity, and light upon them from unsuspicious quarters should not be excluded. The effect of the admission of the assignee to the witness would have tended strongly to the support of the defense in this case.

It is ordered, adjudged, and decreed that the judgment be reversed and the cause remanded for a nevv trial.

Reversed and remanded.  