
    FAVILLE et al. v. ROBINSON et al.
    (No. 11372.)
    (Supreme Court of Texas.
    Feb. 9, 1921.)
    1. Trusts <&wkey;>96 — Up;on repudiation of oral promise upon which land is conveyed, trust arises which may be established by parol.
    Where plaintiff was induced to convey an interest in land to defendant in reliance on defendant’s oral promise to devise her entire interest to plaintiff, and after the conveyance defendant repudiated the oral agreement, the title is subject to a trust in plaintiff’s favor which may be established by parol.
    2. Trusts '&wkey;92(/2 — Oral promise, inducing grant and subsequently repudiated, may be proved to establish trust.
    Where plaintiff was induced to convey an interest in land to defendant by defendant’s oral agreement, subsequently repudiated, to devise her entire interest to plaintiff, the statute of frauds does not prevent proof of the verbal promise for the purpose of establishing a trust.
    ' Suit by Kate Robinson and another against Margaret Faville and another. Judgment of dismissal was reversed by the Court of Civil Appeals (213 S. W. 316), and defendants apply for writ of error.
    Writ of error denied.
    Terrell & Terrell, of San Antonio, for applicants.
    Lawright & Douglas, of San Antonio, opposed.
   PHILLIPS, C. J.

The suit was one where, according to her petition, the plaintiff, Mrs. Kate Robinson, was induced to convey to her mother, Mrs. Margaret Faville, a certain interest in real estate upon the mother’s oral representation and promise that at her death she would devise to the plaintiff her entire interest in the property; which agreement was afterwards repudiated by the mother; and because of which the plaintiff sought to have the property impressed with a trust to the extent of the interest conveyed;

It is clearly and rightfully the rule in this State, as was held by the Court of Civil Appeals, that the title to property acquired under such circumstances is subject to a trust and that the trust may be established by parol. Clark v. Haney, 62 Tex. 511, 50 Am. Rep. 536. Where a grant is made on the faith and because of a promise, a breach of the promise is necessarily a fraud, not to be tolerated in equity although the promise be only verbal. In such eases, where the circumstances are such as to deny the right to a rescission, equity will impose a trust upon the property as a means of defeating a fraudulent and .wrongful acquisition of the title. In the phrase of Chief Justice Gibson, equity turns the fraudulent procurer of the legal title into a trustee, to get at him. Hoge v. Hoge, 1 Watts (Pa.) 214, 26 Am. Dec. 52.

A verbal promise of the character here pleaded and sought to be enforced is not within the Statute of Frauds. Allen v. Allen, 101 Tex. 362, 107 S. W. 528, does not, as the plaintiffs in error urge, hold that it is. The promise is not to convey any existing interest in real estate. It is made as the means of acquiring the interest. The interest is obtained on the faith of it and it enters into the title. Because so, equity will not permit the grantee to hold the title in repudiation of the agreement.

In the Allen Case, Allen already held title to the land, and so holding it agreed, verbally, with Mrs. Sarah Allen that if she would discharge a purchase-money note given for it, the land should be hers. The oral agreement was but an agreement to convey an existing interest in land, and hence clearly within the Statute of Frauds. The decision expressly recognizes that our Statute of Frauds has no application , to the establishment of parol trusts in land where the promise or understanding, the foundation of the trust, was “existing when the titles vested under the written conveyances.”

The difference between that case and cases like it, and this one is that Allen was already the owner of the land when the oral agreement was made; whereas, here, Mrs. Faville, according to the pleading, acquired the title in recognition of the agreement and because of it.

Writ of error refused.  