
    JOHNSON et al. v. SMITH et al.
    (No. 3728.)
    
    (Supreme Court of Texas.
    Feb. 3, 1926.)
    1. Trusts <&wkey;35(l) — Express trust may be created by agreement to thereafter acquire title to land for benefit of others who pay consideration for conveyance.
    Express trust may be created by agreement to thereafter acquire title to land for benefit of others who agree to pay and do pay consideration for conveyance.
    2. Trusts <&wkey;35(l) — Grantee held property in trust for those who paid purchase-money notes by agreement made subsequent to execution of deed.
    The grantee of a deed wherein grantor retained vendor’s Hen holds property in trust for those who paid purchase-money notes pursuant to agreement made subsequent to execution of deed.
    3. Vendor and purchaser <§=3257 — Vendor retaining vendor’s lien on property in deed retains superior title to land until purchase- ' money note paid.
    Where vendor retained lien, the superior title to the land remained in him until such notes were paid, and no title or interest was acquired by vendee save such as was conditioned on payment of’ notes.
    4. Vendor and purchaser <&wkey;85, 92 — Contract of sale could be rescinded by parol agreement between vendor and purchaser, or by vendor alone on vendee’s default.
    Where vendor retained vendor’s Hen,, contract could be rescinded by parol agreement or by vendor alone on vendee’s default or repudiation of his obfigation.
    5. Subrogation <&wkey;23(6) — Vendee’s interest under deed subordinate to superior equitable title of party who thereafter paid purchase-money notes under agreement.
    Where vendor retained a vendor’s Hen, held, vendee’s claim or interest, if any, in land conveyed to which homestead rights might attach, was subordinate to superior equitable title of parties who thereafter paid purchase-money notes under agreement with vendee and wife that they should' thereafter become owners of land.
    6. Vendor and purchaser <§=191 — Possession of vendee, under deed retaining vendor’s lien, wrongful after vendee’s repudiation of purchase or default in paying purchase-money notes.
    Where grantor retained vendor’s Hen on vendee’s repudiation of his purchase or default, such vendee’s possession of property becomes wrongful.
    
      7. Trusts <&wkey;20 — Deed of grantor retaining purchase-money lien held to satisfy statute of frauds with respect to subsequent contract whereby vendee agreed other parties should own land on paying purchase-money notes.
    Deed retaining vendor’s Hen held sufficient compliance with statute of frauds with respect to subsequent agreement between vendee and others that such others should become owners of land on paying purchase-money notes.
    8. Vendor and purchaser <&wkey;2l4(2) — Vendee, under deed retaining vendor’s- lien, holding mere contract for title, may agree by parol for others to have benefit of his contract. '
    Vendee holding a mere contract for title, conditioned on payment of notes secured by vendor’s Hen, and being unable to pay same, may agree by parol for others to have benefit of his contract.
    9. Trusts &wkey;>l7, 18(6) — Equity, despite statute of frauds, will not permit grantee to appropriate moneys expended by others in purchase and improvement of land en oral promise that land should belong to them.
    Where grantee orally agreed that if plaintiffs would pay purchase-money notes secured by vendor’s Hen land should belong- to them, held, despite statute of frauds, equity would not permit grantee to retain and appropriate to his own use and benefit moneys expended by plaintiffs in purchase and permanent improvement of the land in reliance on such oral promise.
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Suit by John Johnson and others against Rachel Smith and others. A judgment for defendants was affirmed by the Court of Civil Appeals (234 S. W. 939), and plaintiffs bring error.
    Judgments of district court and Court of Civil Appeals reversed, and cause remanded to district court for new trial.
    Jones, Sexton & Jones, of Marshall, for plaintiffs in error.
    M. P. McGee and Wm. P. Young, both of Marshall, for defendants in error.
    
      
       Rehearing denied March 10, 1026.
    
   GREENWOOD, J.

Plaintiffs in error sued-defendants in error for the title to, and possession of, 200 acres of land in Harrison county. Plaintiffs in error also sought a decree annulling the claims of defendants in error as a cloud on their title. In the alternative, plaintiffs in error asked for the establishment and enforcement of a vendor’s lien against the land.

Plaintiffs in error pleaded that all parties claimed the land under their father, Elymas Johnson, deceased; that about November 5, 1900, Elymas Johnson bought the land from its then owner, J. R. Sherrod, and received a deed from Sherrod in consideration of $1,000, secured to be paid by the four promissory notes of Elymas Johnson, bearing 10 per cent, per annum interest from date; that by the deed a vendor’s lien was expressly retained on the land to secure the payment of the notes; that subsequently, about November 1, 1901, Elymas Johnson and wife, being unable to work or to pay anything on the land, requested plaintiffs in error to assume the payment of the notes, agreeing that plaintiffs in error should thereupon become the owners of the land; that in compliance with such request and agreement plaintiffs in error assumed and paid the notes and constructed permanent and valuable improvements on the land and became the owners of same, and have ever since been in the actual, adverse possession thereof; and that defendants in error have no claim to the land save by inheritance from Elymas Johnson and his wife, now deceased.

Defendants in error answered that the land belonged to Elymas Johnson and wife; that on their deaths an undivided one-half interest passed by descent to plaintiffs in error and that the remaining one-half passed to defendants in error; that plaintiffs in error had enjoyed the use and rents of the land and had become liable to defendants in error for certain rentals; that any cause of action in favor of plaintiffs in error arising from payments of purchase money or from improvements was barred by limitations. • Defendants in error prayed for judgment establishing their title to half the land and awarding them rents and ordering partition.

The undisputed evidence showed' that all parties claimed the land through Elymas Johnson, who contracted to purchase it on November 8, 1900, from J. R. Sherrod, under deed expressly retaining the vendor’s lien to secure the entire purchase price of $1,000 payable as specified in four notes of Elymas Johnson.

As found by the Court of Civil Appeals, there was evidence to the effect that some time in 1900, after the execution of the deed to Elymas Johnson and while he and his wife were residing on the 200 acres, they agreed that if plaintiffs in error would pay the purchase money secured by the notes, the land should become the property of plaintiffs in error; that thereafter plaintiffs in error paid the notes in full from crops raised by them on the land, with implements and stock furnished by Elymas Johnson; and that they made valuable and permanent improvements on the premises; and that Elymas Johnson and wife continued to reside on the land until their respective deaths intestate in. 1906 and 1918.

It was undisputed that one-half the estates of Elymas Johnson and wife passed to plaintiffs in error and one-half to defendants in error.

The jury found, in answer to special issues:

(1) Plaintiff in error John Johnson made improvements on the 200 acres to the amount of $400 before his mother’s death, and to the amount of $800 after her death.

(2) Plaintiff in error Edward Johnson made improvements on the 200 acres to the Amount of $150 before his mother’s death.

(3) Plaintiff in error Calvin Johnson made no improvements.

(4) Plaintiffs in error John Johnson, Edward Johnson, and Calvin Johnson made payment of $1,276.82 in discharge of the purchase-money notes executed by Elymas Johnson to J. R. Sherrod.

(5) The cash rental value .of the land from 1901 to 1920 was $100 per year.

(6) The $1,276.82 paid for the land was derived from the rents, revenue, or income from the land.

The trial court refused to submit requested special issues as to whether Elymas Johnson and wife agreed for plaintiffs in error to become the owners of the land on their paying for it, or as to whether Elymas Johnson and wife surrendered to plaintiffs in error the right to pay for and acquire the land. The trial court declined to instruct the jury that plaintiffs in error were entitled to recover the 200 acres if the jury found that Elymas Johnson and wife decided to surrender the land in satisfaction of their notes and induced or permitted plaintiffs in error to take over the contract of purchase, with the assent of Sherrod, and that plaintiffs in error thereafter paid off the notes.

On the answers of the jury to the special issues, the trial court rendered judgment awarding one-half the land to plaintiffs in error and one-half to defendants in error and ordering partition. The judgment of the trial court was affirmed by the Texarkana Court of Civil Appeals. 234 S. W. 939.

The Court of Civil Appeals was of the opinion that there was no error in refusing the charge requested by plaintiffs in error, nor in rejecting the above-mentioned special issues tendered by them, for the following reasons:

First. That an agreement by Elymas Johnson and wife for plaintiffs in error to pay the purchase price and own the land could have no different effect from a parol sale of a homestead, made under circumstances not estopping the husband and wife from asserting their homestead rights, and that such a sale was forbidden by the Constitution.

Second. That if plaintiffs in error had become entitled to subrogation to the vendor’s lien securing the purchase price of the land, their right to enforce the lien was barred by limitation. 234 S. W. 940, 941.

After a writ of error was granted, the case was referred to section A of the Honorable Commission of Appeals. The Commission of Appeals entertained the view that the homestead status of the land was immaterial to the proper disposition of the case because Elymas Johnson alone, acting in good faith, had the right to convey the land in settlement of the purchase-money notes, but concluded that plaintiffs in error’s evidence showed no more than a parol sale of the land, which our statute required to be in writing, citing Allen v. Allen, 101 Tex. 364, 107 S. W. 528. The Commission of Appeals further concluded that plaintiffs in error were sub-rogated to the vendor’s lien which secured the notes discharged by them; that their right to enforce the vendor’s lien was not barred by limitations; and that plaintiffs in error should be. compensated for their improvements in the partition between them and defendants in error.

The controlling question is whether the action of the trial court was correct in refusing to submit in any form the issue whether Elymas Johnson and wife agreed for plain-' tiffs in error to pay for and acquire the land.

It is certain that an enforceable express trust may be created by one person agreeing to thereafter acquire title to land in his name for the benefit of others who agree to pay and - do pay the consideration for the conveyance. Where the title is acquired by means of a deed expressly reserving the vendor’s lien to secure payment of the land’s purchase price, defendants in error say the agreement must precede execution of the deed. They argue that otherwise the party to whom the deed is made is allowed to divest himself of title without executing an instrument in writing such as is required by the statute of frauds and such as is required to pass title‘to a homestead. Much reliance is placed on Williams v. County of San Saba, 59 Tex. 445, and Allen v. Allen, 101 Tex. 362, 107 S. W. 528:

The court calls attention in Williams v. County of San Saba, supra, to the fact that the case was not one where real estate had been acquired with the money of one person with a deed talten in the name of another, but was one where the agreement and payment relied on to establish the trust in the ■real estate transpired after the party sought to be held as trustee had become vested with both the legal and equitable title. 59 Tex. 445. Allen v. Allen, supra, presented a state of facts which disclosed that the person sought to be charged'as trustee had, before he made the agreement through which the trust was claimed to arise, become fully invested with title “by a deed without reservation.” 101 Tex. 365, 107 S. W. 528. The substance of both Williams v. County of San Saba and Allen v. Allen is that when a person once becomes invested with full title to land, legal and equitable, he can convey it only by some writing. But the opinion of Justice Williams in Allen v. Allen recognizes that since James v. Fulcrod, 5 Tex. 512, 55 Am. Dec. 743, it has always been held by this court that express parol trusts can be enforced when they arise under agreements “existing when the titles vested under the written conveyances and subjecting those titles to the trusts or confidences reposed in those who received them.” 101 Tex. 366, 107 S. W. 528.

In Barnett v. Vincent, 69 Tex. 685, 687, 7 S. W. 525, 526 (5 Am. St. Rep. 98), Vincent and Williams and. their children agreed to use their joint earnings to pay for 500 acres of land, and on compliance with the agreement each child was to have a defined tract of 50 acres. The 500 acres were conveyed to Vincent and Williams by a deed for $1,000 cash and notes for $4,000 secured by vendor’s lien which the deed reserved. The titles of the children, who had complied with their obligations, were sustained in the following declaration of this court:

“The land had been bought in the name of their parents, for the benefit of the appellees as well as of the nominal purchasers. It was paid for as well with the means of the appellees as of their parents and the other parties interested. This made the parties in whose names the land was bought trustees for the benefit of the appellees to the extent of the land intended for them, and for which they paid. This trust was not within the statute of frauds, and it was not necessary, therefore, that it should be in writing.”

We see no reason for not giving the same effect to the agreement sought to be proven in this case as would- have been given such an agreement preceding the execution of Sherrod’s deed, and as was given the agreement in Barnett v. Vincent, supra. Under the express reservation of the vendor’s lien in Sherrod’s deed, the superior title to the land remained in Sherrod until the purchase-money notes were paid. Masterson v. Cohen, 46 Tex. 523, 524; Hamblen v. Folts, 70 Tex. 135, 7 S. W. 834. No title to nor interest in the land was or could be acquired by Elymas Johnson save such as was conditioned on payment of the notes. -Howard v. Davis, 6 Tex. 182; Roosevelt v. Davis, 49 Tex. 472; Evans v. Ashe, 50 Tex. Civ. App. 63. The contract of sale could have been rescinded by parol agreement between Sherrod and Elymas Johnson or by Sherrod alone on Elymas Johnson’s default to pay the notes ■ or repudiation of his obligation to pay same. Thompson v. Robinson, 93 Tex. 170, 54 S. W. 243, 77 Am. St. Rep. 843; Davis v. Cox (Tex. Com. App.) 239 S. W. 918. If it could be said that Elymas Johnson ever became invested with any claim to or interest in the 200 acres of land to which homestead rights might attach, such claim or interest was entirely subordinate to the superior equitable title of plaintiffs in error, under the agreement with Elymas Johnson and compliance therewith. On Elymas Johnson’s repudiation of his purchase or default to meet his notes, even his possession would have become wrongful but for the assumption and fulfillment of his contract by plaintiffs in error. Browning v. Estes, 3 Tex. 474, 49 Am. Dec. 769. With the title, legal and equitable, in Sherrod, and not in Elymas Johnson, at the date of the agreement with, plaintiffs in error, the deed of -Sherrod was all that was required to comply with the statute of frauds. Allen v. Allen, 101 Tex. 366, 107 S. W. 528. Elymas Johnson, being without title but. holding a mere contract for a title conditioned on payment of the notes, and being unable to pay, could agree by parol for others to have the benefit of Ms contract. Mead v. Randolph, 8 Tex. 196 to 199; Seerest v. Jones, 21 Tex. 132. But for the payments procured by means of Elymas Johnson’s promise to hold for plaintiffs in error, there would have been no divestiture of title out of Sherrod. Ely-mas Johnson was not contracting away title existing in himself. It works no harm to Elymas Johnson for title to pass from Sher-rod to Elymas Johnson in trust for plaintiffs in error, by virtue of the deed and the agreement with plaintiffs in error and the latter’s performance of the obligations originally resting on Elymas Johnson. Considering Elymas Johnson’s inability to meet the notes, he would get only benefit from the execution of the parol agreement through the discharge of his personal obligation on the notes.

It is plainly the duty of a court of equity to prevent the perpetration of such a fraud as would result from Elymas Johnson being allowed to appropriate to his own use and benefit moneys expended by plaintiffs in error in the purchase and permanent improvement of this land, in reliance on the promise of Elymas Johnson that the land should belong to .plaintiffs in error. The statute of frauds does not stand in the way of the exercise of this equitable jurisdiction. Mead v. Randolph, 8 Tex. 196; Bailey v. Harris, 19 Tex. 110; Clark v. Haney, 62 Tex. 614, 60 Am. Rep. 636; Johnson v. Portwood, 89 Tex. 248, 249, 34 S. W. 696, 787.

There was error in refusing to submit the issue as to whether Elymas Johnson agreed for plaintiffs in error to pay for and own the land. Por tMs error, the judgments of the district court and of the Court of Civil Appeals are reversed, and this cause is remanded to the district court for a new trial. 
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