Opinion
No. 3573.
November 18, 1937. Rehearing Denied December 9, 1937.
Appeal from District Court, Harrison County; W. H. Strength, Judge.
Suit by W. T. Scott against W. P. Hamilton and wife. From a judgment for plaintiff, defendants appeal.
Affirmed.
W. T. Scott brought this suit in trespass to try title against W. P. Hamilton and wife to recover the north one-half of a block of land in the city of Marshall. The defendants pleaded not guilty.
Some time prior to the filing of the suit the defendants had conveyed the land to the plaintiff in consideration of the assumption by plaintiff of a vendor's lien note against the land executed by W. P. Hamilton and the plaintiff W. T. Scott, originally in the sum of $4,166.66. The deed recites the note was then owned by Mrs. Kate Dwyer, upon which there was then due approximately $5,471.46 and attorney's fees, and that foreclosure suit upon said note and the vendor's lien securing the same had been brought and was then pending. The deed recites Scott accepted the conveyance subject to delinquent taxes against the property and obligated himself to pay said note and hold the grantors harmless thereon.
It was the theory of Hamilton and wife that there was a parol agreement between the parties at the time of the execution of the deed that it should not pass the title to an undivided one-third interest in the land, and that as to said one-third interest the title should not pass by the deed.
The only issue submitted inquired whether, prior to the execution of the deed, there was an agreement between the parties that title to a one-third interest in the property would not pass by the deed. This issue was answered in the negative and judgment thereupon rendered in favor of Scott.
Percy Woodard, of Marshall, for appellants.
Young Turlington, of Marshall, for appellee.
Appellants present two propositions, the first of which asserts that the finding above indicated is without evidence to support it, and in any event is against the great weight and preponderance of the evidence. In this view we cannot concur. On the contrary, we are of the opinion the finding is abundantly supported by the evidence. Especially is this true in view of the settled rule in this state that one asserting an equitable title to land based upon a parol trust must prove the trust by evidence clear, satisfactory, and convincing.
The other proposition complains of a ruling upon evidence, which we also regard as without merit. In any event, the admission of the evidence presents, at most, but a harmless error, and calls for no reversal.
Affirmed