Bennett's plea was not controverted by McCasland and on August 10, 1979, the trial court entered an order sustaining Bennett's plea of privilege and ordering the cross action transferred to Navarro County. This venue matter is not before us. On August 23, 1979 a hearing was had on McCasland's plea of privilege, which had been timely controverted by Bennett, citing Art. 1995, Secs. 7 (Fraud) and 14 (Lands) as grounds for sustaining venue in Ellis County. At this hearing, Plaintiff-Appellees offered in evidence their original petition, their controverting affidavit, and then offered proof that the subject land lay in Ellis County. Since we are of the opinion that said pleadings show that Plaintiffs were suing for the recovery of land, and the land lay in Ellis County, these were all the venue facts required to establish venue of Plaintiffs' suit in Ellis County. Cowden v. Cowden (1945) 143 Tex. 446, 186 S.W.2d 69; also see Calvert v. Greene (San Antonio CA 1959) 326 S.W.2d 592, no writ; Gourley v. Fields (Eastland CA 1961) 348 S.W.2d 787, no writ. The trial court overruled Defendant-Appellant McCasland's plea of privilege, from which ruling he appeals.
This question is determined by the allegations of the petition. Calvert v. Greene, Tex.Civ.App., 326 S.W.2d 592; Galindo v. Garcia, Tex.Civ.App., 222 S.W.2d 477. This suit grown out of a transaction on January 11, 1958, between appellant and appellees Carlos and Elvira Rogers.
It violates the statute of conveyances. If anything, it is an expressed trust in violation of the Texas Trust Act, Art. 7425b-7. See 3 Bogert, Trusts Trustees, § 488, pp. 130-132; Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256; Sevine v. Heissner, 148 Tex. 345, 224 S.W.2d 184; Coffield v. Sorrells, 144 Tex. 31, 187 S.W.2d 980; Calvert v. Greene, Tex.Civ.App., 326 S.W.2d 592. There was no contention that the lease was to be taken in the names of the plaintiffs.
Subdivision 14 has been held inapplicable to specific performance of contracts, even though the contract involves an interest in land. Smith v. Hall, 147 Tex. 634, 219 S.W.2d 441, 444 (1949); Black v. Salazar, 577 S.W.2d 768, 770 (Tex.Civ.App. — Corpus Christi 1979, no writ); Calvert v. Greene, 326 S.W.2d 592, 593 (Tex.Civ.App.-San Antonio 1959, no writ). Simply stated, a Harris County court can hear this case and make whatever orders are appropriate. Either Manges and Haun will be ordered to assign to Mellon whatever interest they have in the leases, and the court will determine the portion of funds in escrow due each claimant, or the court can declare the escrow funds returned to Mellon. Evidence was adduced before the trial court that appellant was a Delaware corporation with its principal place of business in Harris County, Texas; that the defendant bank and escrow agent, a party defendant to the suit, was located in Houston; that some of the other named defendants resided outside this state; that some of the other defendants resided in other counties within this state and that the residence of some of the defendants was unknown.
Defendants assert that this suit is one for specific performance of a contract or for breach of contract, and is not a suit involving title to lands covered by Subdivision 14. We disagree. Defendants rely heavily on Calvert v. Greene, 326 S.W.2d 592 (Tex.Civ.App. San Antonio 1959, no writ), to support their opposition to venue under Subdivision 14. Defendants' reliance on that case is misplaced. In Calvert, the court upheld venue in the county in which the action was filed, which was the situs of the oil, gas and mineral leasehold interests.
There follows in plaintiffs' petition descriptions of four oil, gas and mineral leases, dated in 1975 and 1976, on land in Gonzales County. A suit for specific performance of a contract to assign an interest in land is not within Subdivision 14 of Article 1995. Levinson v. Slater, supra, Calvert v. Greene, 326 S.W.2d 592 (Tex.Civ.App. — San Antonio 1959, no writ). But a suit claiming equitable title to land by means of a constructive trust does come within Subdivision 14. Carstairs v. Bomar, 119 Tex. 364, 29 S.W.2d 334 (Tex.Comm'n App. 1930, opinion adopted), Levinson v. Slater, supra. Appellants argue that the facts herein merely allege a suit for specific performance of a contract to assign an interest in land.
There follows in plaintiffs' petition descriptions of seven oil, gas and mineral leases, dated in 1974 and 1975, on land in Wharton County. A suit for specific performance of a contract to assign an interest in land is not within Subdivision 14 of Article 1995. Calvert v. Greene, 326 S.W.2d 592 (Tex.Civ.App. San Antonio 1959, no writ); Milburn v. Minette, 278 S.W.2d 269 (Tex.Civ.App. El Paso 1955, no writ); Edgar v. Bartek, supra. But a suit claiming equitable title to land by means of a constructive trust comes within Subdivision 14. Carstairs v. Bomar, 119 Tex. 364, 29 S.W.2d 334 (Comm'n App. 1930, opinion adopted); Edgar v. Bartek, supra.
In the second case it is a suit for breach of contract or specific performance and venue may not be retained in the county in which the land is situated by the force of the subdivision. Calvert v. Greene, 326 S.W.2d 592 (San Antonio, Tex.Civ.App. 1959, no writ), and cases cited. See also Smith v. Hall, 147 Tex. 634, 219 S.W.2d 441 (1949).
Cohrs v. Scott, 161 Tex. 111, 338 S.W.2d 127, 130; Morrison v. Farmer, 147 Tex. 122, 213 S.W.2d 813. In Calvert v. Greene, Tex.Civ.App., 326 S.W.2d 592, under a materially different state of facts, the court laid down the rule applicable here when it said: "In determining the question of whether this case is a suit for title to real estate, or one for breach of a contract for the conveyance of real estate, or a suit for specific performance, he test is whether the agreement alleged was one in which title was to be taken in the names of both plaintiff and defendants, or was one in which title was to be taken in the names of defendants, and they in turn agreed to convey an interest therein to plaintiff.
The parties will be referred to as they were in the trial court. The plaintiff had the burden of establishing, under Subdivision 14, that his suit was for the recovery of land and that the land was located in Erath County. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69. The court in Calvert v. Greene, Tex.Civ.App., 326 S.W.2d 592 (No Writ History), said: "The controlling factor is not that plaintiff has title, as disclosed by the facts, but that by his allegations he claims title." We have concluded that the nature of the plaintiff's cause of action, as disclosed by his petition, is one for the recovery of an interest in land.