
    COX v. GARROW et al.
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 18, 1913.
    Rehearing Denied Jan. 15, 1914.)
    1. Judgment (§ 251) — Conformity to Issues — Ckoss-Complaint—General Denial.
    Where cross-complainant, in trespass to try title, claiming an undivided interest, relied on the theory that a conveyance to the defendant in the cross-action was in trust, such defendant, having pleaded only the general issue, was not entitled to an affirmative judgment for an interest in the land, as against cross-complainant, based on his purchasing at a specific price and thereby obtaining a specific interest.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.]
    2. Vendor and Purchaser (§ 79) —Construction of Contract — Conditions — Rights of Parties.
    Where a grantor conveyed land in consideration of the grantee’s advancing a specified sum in cash and paying a specified sum annually for five years, and any additional amounts necessary for the grantor, and in further consideration of the grantee undertaking to clear the title and sell the property and receive for his compensation a half of the net proceeds, the grantee, to secure a vested interest, must undertake to clear the title, pay the money, and sell the land, and, where he merely paid part of the money, he was not entitled to judgment giving him a substantial interest in the land.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 7, 8, 127-131; Dec. Dig. § 79.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by J. W. Garrow and others against J. Wade Cox and others. Erom a judgment for plaintiffs against all of the defendants and in favor of defendant Pruett against defendant J. Wade Cox, the latter appeals.
    Affirmed.
    W. O. Huggins and Daniel E. Garrett, both of Houston, for appellant. Hunt, Myer & Teagle and Lewis, ICinnard & Norton, all of Houston, for appellees.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, C. J.

This suit was instituted by J. W. Garrow and others, heirs of John T. Brady, deceased, in form of trespass to try title to 1S.41 acres of land, against Frank Taylor, Dorothea Eggert, Emma Pruett, and J. Wade Cox.

Defendant Cox answered by plea of not guilty, general denial, an assertion of. title to the land described in plaintiff’s petition, pleaded ten years’ statute of limitation, and that if plaintiffs should recover the 18.41 acres sued for, or any part thereof, that he have judgment upon covenant of warranty in and from defendant Pruett to him.

Defendant Eggert pleaded general denial, not guilty, asserted title to one half interest in land sued for, and admitted that defendant Pruett owned the other half of the 18.41 acres and all of the 50 acres lying north of the land described in plaintiffs’ petition.

Defendant Pruett answered by general denial, not guilty, and, by way of cross-action against defendant Cox, alleged that her father, Christian Eggert, purchased from W. R. Baker 50 acres of land, being a part of the league originally granted to P. W. Rose, as shown by deed to said Eggert from said' Baker, of date May 19, 1858, recorded in Book U, pp. 136 and 137, of the Deed Records of Harris county, Tex., here referred to; that Christian Eggert afterward purchased the same tract of land from A. H. Hodge and afterward with his family occupied said 50 acres of land, together with about 18 acres situated next to and adjoining said 50 acres on the south, as a home for a period of about 34 years, “possession and occupancy, being the basis of his claim to all but the 50-aere tract”; that about 20 years ago said Christian Eggert moved with his family to Houston, and since said time said land has been occupied by tenants of the defendant Pruett and Eggert; that some time in 1890 “Christian Eggert died intestate, leaving said land to the defendant Pruett”; that in October, 1896, the defendant Eggert conveyed to the defendant Pruett her interest in said 50 acres of land; that appellant Cox proposed to her that if she would place the title to said land in his name, and he would supply and advance to her $500 in cash and $500 each year for five years, together with such additional amounts as she might need,^ and he would undertake to- “clear” the limita-0 tion title to said 18 acres of land, paying all expenses incident thereto, and at some favorable opportunity sell all of the land and as his compensation for this, he was to receive one-half of the net proceeds of such sale; that she accepted said proposal and executed an instrument which she understood to be intended to carry the same into effect, and appellant advanced to her $500 in cash and executed notes payable in five annual installments for $500 each representing the balance; that afterward appellant paid the first three of said notes when they became due; that appellant made no effort to perfect the title to said 18 acres of land and performed no part of his said undertaking, except to pay said three notes; that, after this suit was filed, appellant' repudiated said agreement, whereupon the defendant Pruett rescinded same and tendered to appellant the sums which had been advanced to her incident to same and presented to appellant a deed to be executed by him, reconveying the title to her, which he refused to sign. She prayed for title to the land as against appellant and a cancellation of the deed and notes, upon the return by her to appellant of the amounts advanced, or upon such terms as should be found equitable, and for general relief. To this plea of defendant Pru-ett, Oox answered by general denial.

Tried before jury, verdict in favor of plaintiffs for the 18.41 acres against all of the defendants, and in favor of defendant Pruett against J. Wade Cox for the 50-acre tract, canceling the deed from Pruett to Cox and the vendor's lien notes incident thereto upon the repayment by Pruett to Cox the moneys advanced.

Appellant's first and second assignments of error complain that the court erred in not instructing a verdict for appellant against defendant or appellee Pruett; his proposition being that the verdict is against such a' preponderance of the evidence that it is proper that this case be reversed and remanded. The evidence is sufficient to sustain the verdict of the jury.

Appellant’s third assignment is as follows: “The court erred in giving in charge to the jury the third paragraph of his charge, which is as follows: ‘If you believe from the evidence that the instrument executed by Mrs. Emma Pruett to the defendant J. Wade Cox of date October 26, 1908, which on its face is a deed from the said Mrs. Pruett to the said Cox, was intended by the parties thereto as a deed of trust, for the purpose of carrying out the alleged objects and intentions of the parties thereto, as stated by Mrs. Pruett in her cross-bill herein against the defendant Cox, and that thereafter the defendant Cox repudiated and denied said trust and agreement, if any, as alleged, then, if you so find these facts, you are charged that said trust would terminate, and the title to said land would not pass from Mrs. Pruett to the defendant Cox, and that the said Mrs. Emma Pruett would be entitled to recover from the defendant Cox the title to all of the land described and purported to be conveyed therein, and to judgment canceling the said deed, and that in such event the defendant Cox would be entitled to judgment against the said Mrs. Pruett for all moneys paid by him to her in said transaction, with 6 per cent, interest per annum from the date of the respective payments up to the 8th day of March, 1912, and the said Cox would also be entitled to judgment canceling the two unpaid vendor’s lien notes held by Mrs. Pruett. If, on the other hand, you should not believe from the evidence that said instrument was executed in pursuance of the trust agreement alleged, then you are instructed that said instrument would convey all of the right, title, and interest of the said Mrs. Emma Pruett to the land described therein, subject to a lien in her favor for the two unpaid purchase-money notes.’ ” His proposition being that, assuming the theory advanced by defendant Pruett to be that the land was simply conveyed in trust, Cox bought at a specific price a specific interest in the land to which he now has the legal and equitable title.

The only pleading filed by the appellant, Cox, in answer to the allegations of Eggert and Pruett, is a general denial. This would be sufficient to permit evidence to be introduced but would not support an affirmative judgment for an interest in the land as against defendant Pruett, even though the facts would support such an interest. Winn v. Gilmore, 81 Tex. 345, 16 S. W. 1058; Rivers v. Foot, 11 Tex. 662; Guess v. Lubbock, 5 Tex. 535.

The defendant Pruett pleaded that the title to the land was placed in the name of Cox for the following consideration and purposes, viz., he to advance $500 in cash and $500 each year for five years thereafter and any additional amounts she might need, he to undertake to clear the title to the limitation title to the 18 acres, pay all expenses incident thereto, and at some favorable opportunity sell all of the land, and as his compensation for all this he was to receive one-half of the net proceeds of such sale.

Now, in order for Cox to secure the vested interest (aside from the pleading necessary), he must have undertaken to clear the limitation title to the 18 acres, pay the moneys, and sell all of the land’; according to the pleading and evidence he did attempt to clear the title to the 18 acres, but in himself. He paid some of the money, but for himself (i. e., that he have the fee-simple title to all the land), thus asserting that he will not undertake to do the last and most important part, sell the land, and divide the amount it might bring over the sums paid by him to his codefendant, and then asks this court to find that this is a compliance of a condition subsequent which gives him a substantial interest in the land in controversy.

The assignment is pverruled, and, since the other a’ssignments urge the same proposition in one form or another, they are also overruled without further comment.

Affirmed.  