
    No. 5982
    H. A. Burns v. Susan Ross et al.
    1. Trust—Payment or Purchase Money.—The plaintiff furnished the purchase money for a tract of land. The legal title for it was conveyed to the ancestor of the defendants. Held, that the equitable title vested in the plaintiff and he was entitled to recover the title and possession of the land; such right does not depend upon the existence of an express agreement at the time of the execution of the deed.
    2. Same.—By implication equity charges the holder of the legal title in such case with the duties and liabilities as upon express agreement recognizing the trust.
    Appeal from Burnet. Tried below before the Hon. W. A. Blackburn.
    This is a writ of error from a judgment against Burns, the plaintiff below. The object of the suit is to recover one hundred acres of land in Burnet county—a part of the William Slaughter league. The case in the petition is that the land had been originally purchased by plaintiff and the consideration therefor paid by him, but the conveyance from the vendor was made to W. B. Boss through whom defendants claim by inheritance, without the knowledge or consent of plaintiff and through the fraud of said Boss.
    The plaintiffs answered by general denial and plea of stale demand.
    A verdict and judgment were rendered for the defendants.
    The testimony was substantially as follows:
    J. T. Moore, a witness for defendants, testified “that he, in. company with W. B. Boss, H. A. Burns, one of the Boss boys and Lewis Thomas, about the latter part of July, 187?, rode over all of the lands offered for sale by Lewis Thomas. After we had been around the lands Boss asked Lewis Thomas his price. He told him six thousand seven hundred dollars. Boss said the price was too high, and called -Thomas’s attention to the fact that the fences around the farm were rotten, and to the scarcity of rail timber. Thomas replied that should be no objection to a trade, that he would put in a one hundred acre tract, well timbered (the land in controversy), and twenty acres in the Mormon cedar brake. Boss then replied, “Well if you will do that, you may consider the trade closed.” We then agreed to go to Burnet the next day to fix up deeds. After the trade was closed, Boss, Burns, Thomas and witness rode over the Gavin lands. “Burns seemed well pleased with the same and made no objection to it in my hearing, or while I was present. On the next day I came to Burnet, where I met Boss, Burns, Gavin and Thomas. Thomas and Boss went to Bob Cates’s office, and there the deed was drawn from Thomas to W. B. Boss. H. A. Burns came in the office of Oates several times during the preparation of the deed.”
    B. H. Cavin testified “that a short time after the sale from Thomas to Boss he had a conversation with Thomas in which he (Thomas) said that he had to give Boss one hundred acres of the Slaughter survey to get him to close the trade with him.”
    Defendants then proved by N. A. Gavin that Thomas informed him, a short time after his sale, “that he had to give W. B. Boss the land in controversy to get him to purchase his other lands.”
    W. M. Boss testified “that H. A. Burns had lived in the neighborhood of the land in controversy since a short time after the purchase by Burns Of the Gavin land, and, that during all of that time he had laid no claim to the one hundred acres.”
    Defendants proved payment of taxes by W. B. Boss from 1877 to 1886.
    Plaintiff admitted that both he and Boss had their deeds filed for record on the same day that they were respectively executed; that he could have read the deed from Thomas to Boss but did not think he had; that he and Boss camped together the same night and went together to their homes in Fayette county; that he did not investigate the manner of the transfer from Thomas to Boss, or make any inquiries about what lands had been deeded to Boss, and that he and Boss had lived neighbors from the fall of 1877 till the death of Boss in May, 1886.
    The charge of the court is given in opinion.
    J. G. Cook, for plaintiff in error:
    If the plaintiff did in fact furnish and pay the consideration to Thomas for the land in controversy, and the conveyance was made to Boss, the plaintiff’s right to the land is not conditioned upon an express promise on the part of Boss to re convey to plaintiff; such promise will be implied. (Long v. Steiger, 8 Texas, 461; Tarpley v. Poage, 2 
      Texas, 150; Smith v. Strahan, 16 Texas, 320; Leaky v. Gunter, 25 Texas, 403; McKamey v. Thorp, 61 Texas, 650; 2 Story Eq., sec. 1201; 2 Wash. Real Prop., 475; Howell v. Howell, 15 N. J. Ch., 77; Millard v. Hathaway, 27 Cal., 139; Baumgarten v. Guessfield, 38 Mo., 36.
    
      T. E. Hammond, for defendant in error:
    1. The trust of a legal estate, whether taken in the name of the purchaser or others, whether jointly or successively, results to the person who advances the purchase money. The charge of the court properly submitted that issue to the jury.
    2. The plaintiffs’ suit was brought upon an express agreement on the part of W. B. Boss to convey to him the land in controversy, and this issue was properly submitted to the jury; and the court did not err in refusing to give the special charge-requested by the plaintiff. (2 Pom. Eq. Juris., sec. 1037, and note 1, p. 610; Withers v. Withers, Ambl., 151; Wray v. Steele, 2 V. & B., 388; Loyd v. Read, 1 P. Wms., 607; Bider v. Kidder, 10 Ves., 360; Case v. Cadding, 38 Cal., 191; Long v. Steiger, 8 Texas, 461, 62; Newman v. Farquhar, 60 Texas, 640; R’y Co. v. Wright, 62 Texas, 515; Cunio v. Burland, Texas Unr. Cases, p. 469, and authorities there cited.
   Acker, Judge.

Plaintiff in error brought this suit against defendants in error as heirs and representatives of W. B. Ross, deceased, on the twenty-seventh day of September, 1886, to recover one hundred acres of land, part of the William Slaughter league. It was alleged in the petition that the land was purchased by plaintiff in error, and the consideration therefor furnished by him, but that the conveyance was made to W. B. Ross without plaintiff’s knowledge or consent, and through the fraud and misrepresentation of W. B. Ross.

Defendants in error answered by general denial, not guilty, and special defenses not necessary to mention here.

The case was tried by a jury, October 12, 1886, resulting in a verdict and judgment for the defendants. The court charged the jury as follows: “The questions of fact which you are to determine by your verdict are: First. Was Burns induced to purchase Gavin’s land in consideration of Thomas’s promise to convey bim (Burns) the one hundred acres of land in dispute? Second. Did Boss, at the time or prior to the execution of the deed to him, agree to convey the land to Burns? If you are satisfied to answer both of these questions in the affirmative, from a preponderance of creditable evidence in the case, you will find for plaintiff; if not so satisfied, for defendants.”

The plaintiff requested the following special instruction, which was refused by the court: “The promise, if any, made by W. B. Ross at the time of receiving the deeds to the land in controversy, will entitle plaintiff to recover, whether such promise was an express or implied promise; and such promise will be implied if the jury believe that plaintiff furnished the consideration for the purchase of said land.”

Under proper assignment of error, it is contended that the court erred in the charge given and in refusing the special charge requested, and this is the only question involved in this appeal. If the consideration for the land was actually furnished by plaintiff, a trust resulted in his favor at the time the legal title was conveyed to Boss, and his right to recover the legal title and possession of the land was not dependent upon an express agreement upon the part of Boss to convey the land to him. By implication, equity charges Boss with the duties and liabilities arising upon such an express agreement. (McKamey v. Thorp, 61 Texas, 648; 2 Pomeroy’s Equity, secs. 981, 1031.)

We think the court below erred in the second paragraph of the charge given, and in refusing the special instruction requested by plaintiff, for which the judgment should be reversed and the cause remanded. '

Reversed and remanded.

Opinion adopted October 23, 1888.

Station,

Chief Justice.  