pellant was entitled to nothing by her suit, and that all parties, as to her suit, go thence and recover costs, etc. From such judgment this appeal was taken. pay the incumbrances thereon, and appellee Brooks, at the request of A. M. Samuell, suggested to her that it would be advisable to sell the land and place $5,000 of the proceeds in trust for her daughter Zora, and Mrs. Samuell made the declaration for the for her daughter. After the delivery of the trust declaration, and before delivery of the deed of November 29, 1915, Mrs. Samuell was informed by her son that appellee A. M. Samuell would accept a note payable to Zora and taken in part payment of said land, and use it as collateral in speculating in cotton futures for the benefit of Mrs. Samuell, and immediately upon delivery of the last deed to appellee Brooks Mrs. Samuell directed that it be sent to appellee A. M. Samuell, which was done. Samuell immediately returned it to appellee Brooks. When the note was forwarded to A. M. Samuell, appellant intended that he should use it as collateral in speculating for her and her children, and did not intend that it should be returned or delivered to Zora Samuell, or appellee Brooks for her, and understood from what her son had told her that it would be used to speculate on, although appellee A. M. Samuell had not so agreed. Nor did appellee A. M. Samuell advise appellant that he had returned it to appellee Brooks until some time afterward, when she called upon him at Dallas, at which time she immediately demanded the note, which appellee Brooks refused to deliver. There was no agreement between appellee A. M. Samuell and appellee Brooks, at the time the latter purchased the land, that the former would take the land from Brooks at the price he paid for it, although Brooks did so convey the land to Samuell. Samuell did advise Brooks to buy the land, and guaranteed him against loss in the transaction. At the time Mrs. Samuell delivered the deed to Brooks and accepted his note in part payment thereof, Zora Samuell was attending school at Dallas and living with her uncle, A. M. Samuell, as she also was at the time of the trial of the case. Upon request of the appellant the court filed conclusions of fact and law. The facts found are, in substance, these: On March purpose of creating a fund of $5,000 in trust 10, 1915, appellant, Mrs. Berta V. Samuell was indebted to First National Bank of Greenville and its cashier, appellee S. B. Brooks, in an amount aggregating $5,534.80. On that date Mrs. Samuell conveyed to Brooks 210 acres of land in Hunt county by general warranty deed absolute in form, but intended as security for her indebtedness. Thereafter, on October 12, 1915, Mrs. Samuell signed, acknowledged, and delivered to Brooks another instrument, in the nature of a declaration, which recited in substance that the conveyance of March 10, 1915, to Brooks, while absolute in form, was intended to secure Brooks and the bank in the sum .of $5,534.80; also that against said land so conveyed there was a prior lien securing the British American Mortgage Company in payment of a debt of $8,000; and that it was her desire to sell the land and pay the debts enumerated, and, in addition, to create, out of the proceeds of the sale, a trust fund of $5,000 for the benefit of her daughter Zora. For the purposes enumerated she authorized and empowered Brooks to speedily sell the land for not less than $100 an acre, and with the proceeds, first, pay all indebtedness due British American Mortgage Company, or permit the purchaser to assume such indebtedness; second, pay the debt due by her to the First National Bank of Greenville and Brooks, including any additional sums advanced; third, to retain, as trustee for Zora Samuell, $5,000, which should be invested and reinvested in her behalf, paying to her, for her maintenance and education, the income from said fund as it accrued, whether annually, semiannually, or monthly, said trust to continue for years, after which the entire fund was to be paid to Zora; fourth, the remainder of the proceeds from said sale, if any, to be paid over to said Mrs. Berta V. Samuell. Thereafter, on November 29, 1915, appellant, Mrs. Berta V. Samuell, signed, acknowledged, and delivered to appellee Brooks a general warranty deed to the 210 acres of land referred to in the former instruments. The consideration was $21,000, paid by Brooks assuming the $8,000 due British American Mortgage Company, $8,000 in cash, and appellee Brooks' note for $5,000, payable the correctness of the court's conclusion in to Zora Samuell, and due January 1, 1916, being the note in controversy. The deed to Brooks referred to the former conveyance to Brooks, and declared it was but a mortgage to secure the debts enumerated in the trust declaration subsequently recorded. Prior to signing and recording the declaration of October 12, 1915, it was the desire of appellant, Mrs. Samuell, to sell the land and The trial judge reached the conclusion, in effect, that the instrument of October 12, 1915, which may be designated a declaration of trust, created or set aside a fund of $5,000 for the benefit of appellee Zora Samuell, the right to the use of which vested when appellant, Berta V. Samuell, signed, acknowledged, and delivered the deed of November 29, 1915, to appellee Brooks. Appellant challenges the respect stated, and since the issue so raised is, in our opinion, controlling, we will consider it first. [1, 2] Appellant contends that the declaration is incomplete, executory, and at most a promise to create a trust, for the reason that it does not convey the land to Brooks in trust for Zora, nor does it empower him to convey the land and apply the proceeds as directed, but merely authorizes him to sell, which as a consequence leaves the trust revocable, and that appellant did revoke same when she executed the deed. The foregoing, while in our own language, fairly and in substance states the attitude of counsel for appellant, Mrs. Samuell. In determining the issue thus presented, we omit discussion of any elements of the subject of trusts other than the precise question involved, and will attempt even in what we do say to confine ourselves to the application of the rule to the particular facts disclosed by the record in the present case. Using in substance the language of another: The general rule is that perfect or complete voluntary trusts are, and executory, incomplete, or promissory trusts are not, enforceable in equity. Trusts may be created in real or personal property by conveyance or assignment to the donee, or by such transfer to third persons upon declared terms, or by declaration which fastens a beneficial interest in or upon property and retains the legal title in the donor. If the donor adopts either the "second or third mode, he need not use any technical words or language in express terms creating or declaring a trust; but he must employ language which shows unequivocally an intention on his part to create a trust in a third person or to declare a trust in himself." Pomeroy, Eq. Juris. § 997. "Where the donor has the legal title, and the property is of such a nature that a legal estate can be transferred-that is, is land, chattels, money, and some species of things in action-an imperfect conveyance or assignment, which does not pass the legal title, will not be aided or enforced in equity. But if the property is not of such a nature that the legal title can be transferred, then, if nothing more remains to be done or can be done by the grantor or donor-if, as far as he is concerned, the conveyance or assignment is complete, and he has done all that is necessary to be done, having regard to the nature of the property-the conveyance or assignment will be effectual in equity, and will be enforced on behalf of the donee." Pomeroy, Eq. Juris. § 998. [3] What, then, is the status of the declaration of appellant of October 12, 1915, when applied to the very clear and uninvolved rules announced by Mr. Pomeroy? We conclude that said instrument alone and within itself is a complete or executed trust enforceable in equity. The instrument declares the donor to be the owner of land which is incumbered with certain mortgages, and that it is her desire to sell the land for a fixed sum, and out of said sum pay the incumbrances and set aside to her daughter Zora $5,000 as a trust fund to be administered by the trustee named. She directs the trustee to sell the land at the figure named, and when sold to apply the proceeds as directed, any balance to be paid to her. The trust does not come within the class enumerated in the first rule announced, since it is clear, and may not be denied, that there was no purpose on the part of Mrs. Samuell to convey any interest in the land. If that had been her purpose, it is equally clear that the declaration would have been insufficient in that respect, since by that rule, when such is the purpose, the donor must do "all that is necessary, according to the nature of the property, to pass and vest the title," which would have been by deed executed in the manner required by statute. Obviously Mrs. Samuell's purpose at that time was to set aside $5,000 out of the proceeds derived from the sale of the land, when sold, to be held in trust for the maintenance and education of her daughter. To import less to the language would be to declare the instrument meaningless and to assert that she had no purpose in view. It may be conceded that the fund could not become available until Mrs. Samuell actually sold and conveyed the land. That would not affect or change the fact, however, that she did set aside the sum stipulated. No more certainty would have been added to what she actually did declare and do, if she had gone further and added that the use of the fund was available only upon her conSuch was obviously veyance of the land. true whatever was said. She was not transferring an interest in lands, and hence deed was not necessary to complete the trust. She did not have the fund in possession; hence assignment or corporeal delivery for the same reason was unnecessary and could not be made. Nothing in fact remained for her to do to complete the transaction, for, as we have shown, when the property or thing sought to be bestowed is of such nature that legal title cannot be passed or the thing actually delivered, "the conveyance or assignment is complete." It must only appear that there is an unequivocal intention on the part of the donor to make the bestowal; and in that connection technical words or language expressly creating the trust are not necessary. And while the beneficial use of the fund may have been postponed by the refusal of Mrs. Samuell to convey to Brooks, or at all, whenever she did sell or upon her death, equity would enforce same, unless, of course, the proceeds from the sale of the property or the trust was in some manner defeated, were insufficient to pay the incumbrances, as by taking a negotiable promissory note, similar to the one in controversy, in the name of Mrs. Samuell or another, and its acquisition for value by one without notice of the trust, or by unlawfully using the money for another purpose. However, those are conditions which never arose, for appellant did sell the land and voluntarily set aside the $5,000, by taking the note in the name of her daughter. The fact that she intended to use the note or fund unlawfully, by which we mean the fund was not hers to use, is of no consequence in determining to whom same lawfully belonged. We concede and believe that she intended, and in utmost good faith believed she had the right, to divert the fund, and that it would have been wisely invested for all; yet such facts are without force to change the result of her declaration or the status of the fund when the land was sold. There are several other issues presented in the appellant's brief, including one of whether the declaration constituted a gift inter vivos, whether there was a delivery of the note to Zora, so as to pass ownership out of Mrs. Samuell, and the question of attorney's fees in the event Mrs. Samuell was the true owner of the note. In our opinion such issues are never reached under our holding that the declaration of trust was a complete conveyance of fund, and for that reason will not be discussed. The judgment is affirmed. On Rehearing. Counsel for appellees courteously insists. on motion for rehearing that it is not clear from our opinion which of the several instruments discussed therein and disclosed by the evidence we hold creates the trust. As is shown by our opinion, we base our conclusion upon the declaration of October 12, 1915. It is true that the subsequent conveyance of the land made the trust fund available to the donee, but that fact did not, in our opinion, constitute the instrument an executory trust. It is said that "A trust is executory when some further act is directed to be done in order to complete and perfect the trust intended to be created. A misconception should here be guarded against. When by the terms of the trust as created, and for the purpose of carying it into effect, the trustee is directed to do some act with the property, the trust is not thereby executory. Giving property to a trustee upon trust to convey to a person, or upon trust to convey it upon certain specified trusts, does not render the trust executory. If the scheme has been imperfectly declared at the outset," and the donor has imposed upon the trustee or the court the duty of effectuating it, "the trust is called executory. All trusts are in a sense executory, because a trust cannot be executed, except by conveyance, and therefore there is something always to be done." The test is: Has the donor "left it to the court to make out from general expressions what his intention is, or has he so defined that intention that you have nothing to do but to take the limitations he has given you, and to convert them into legal estates?" Pom. Eq. Juris. 8 1001. In our opinion the declaration of October 12, 1915, clearly set aside to the donee the sum stipulated to be paid when the land was sold, and hence when the land was sold the amount was converted thereby into a legal estate. Of course, as said in the original opinion, the trust or estate could have been defeated, but that fact does not, in our opinion, destroy what would otherwise constitute a complete trust. The motion for rehearing is overruled. RODGERS v. BELL et al. (No. 2059.) (Court of Civil Appeals of Texas. Texarkana. EVIDENCE 186(4), 317(4)-HEARSAY-SUB- In trespass to try title, depending upon whether a deed was forged, where it appeared that the deed was destroyed, and the parties, witnesses, and notary had died, declaration by a witness that an attesting witness said he had seen the grantor sign the deed, in corroboration of other testimony, was not inadmissible as hear say. Appeal from District Court, Lamar County; A. P. Dohoney, Judge. Trespass to try title by W. C. Rodgers against J. H. Bell and others, with crossbill by defendants. Judgment for defendants, and plaintiff appeals. Reversed and remanded. Rube S. Wells and B. B. Sturgeon, both of Paris, for appellant. Moore & Hardison and W. A. Hutchinson, all of Paris, for appellees. LEVY, J. The appellant brought the sult against the appellees in trespass to try title The appellees to a certain tract of land. pleaded not guilty, and by cross-bill sought to recover title to the land. Appellees also filed an affidavit that a certain deed was a forged instrument. The main issue in the case was that respecting the alleged forged deed. In a trial before the court without a jury the following finding and conclusion were filed: "Defendants having filed an affidavit charging that a deed purporting to have been executed by B. F. Kennedy and wife to Zora Kennedy, of date August 27, 1896, is a forgery, and the plaintiff having failed to prove the execution of said deed, I find that said deed was not executed by B. F. Kennedy and N. J. Kennedy. I therefore conclude that the defendants are entitled to judgment for the land in controversy." The alleged makers as well as the witnesses to the deed in issue were dead at the time of the suit. The notary public purporting to take the acknowledgments of the grantors in the deed died some time before the trial, and it was shown that the original instrument in controversy was offered in evidence. On the deed appeared the names of two attesting witnesses, John B. Davis and J. E. Horner; and the plaintiff offered to prove by the son-in-law of John B. Davis the following: "In the winter before Mr. Davis died in June we were sitting before the fire talking about the old people in the country who used to live out there, and he remarked that he witnessed a deed For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes from Ben Kennedy to his niece, and that Mr. | bring action for the property, but should sue Horner, as I understood him, also witnessed it." for a partition thereof. DICTION. The court, on objection that it was hear-5. COURTS say evidence, refused to permit this testimony, and the appellant predicates error upon the ruling. 163-COUNTY COURTS-JURIS The county court has no jurisdiction of an action to recover or partition real property. Appeal from Upshur County Court; W. H. McClelland, Judge. Action by Mrs. Dora Belle Fenton and another against J. L. Miller. Judgment for plaintiffs, and defendant appeals. Reversed and remanded. The original deed being destroyed, and the grantors and witnesses being dead, it would be a difficult thing to make any proof of the handwriting of these parties to the instrument; and in these circumstances the next best evidence is proof of declarations of the attesting witness. The declaration here in hand is circumstantially relevant to show that Mr. Davis did, as the deed showed, In 1907 appellee Mrs. Dora Belle Fenton, witness the signing of the deed by the pur- a married woman, purchased certain mill and ported grantors, and that he did not sub-gin machinery of one Jones, paying him $1,scribe his name to a false attestation. This, when shown, is a circumstance of corroboration of other testimony in the record. It is believed that the rule of hearsay evidence has in this particular case no application. 16 Cyc. p. 1146; 10 R. C. L. 300; 1 R. C. L. 000 therefor out of her separate estate and agreeing to pay him $400 more in accordance with the terms of her two promissory notes for $200 each which she then made and delivered to him. She afterwards sold an undivided one-half interest in the property to her son J. R. Fenton in consideration of his undertaking to pay said notes and operate the mill and gin on their joint account. Thereafterwards J. R. Fenton built a ginhouse, into which, it seems, he moved the machinery, and where, it seems, he operated the mill and gin during the seasons of 1908, 1909, and 1910. It does not appear from the record sent to this court whether the house was built on land belonging to J. R. Fenton, or to his mother, or to her husband, or to some other person, nor whether it was attached to the land otherwise than by its own weight, nor whether it was placed on the land with or without an agreement as to its removal, etc. In 1910 J. R. Fenton sold the interest he had acquired in the machinery and ginhouse back to his mother for $400, $247 of which she then paid to him with money acquired by her in the operation of the gin and mill, and the remainder of which had not been paid to said J. R. Fenton at the date of the trial, to wit, May 31, 1918. When she purchased the interest of J. K. Fenton, Mrs. Fenton placed another one of her sons in charge of the property and thereafterwards to the date of the trial, it seems continued to operate the mill and gin. March 22, 1918, the sheriff of Upshur county levied upon the mill and gin machinery by virtue of an execution on a judgment in favor of appellant against appellee R. Fenton, who was Mrs. Dora Belle Fenton's husband. April 24, 1918, said sheriff, by virtue of another execution on said judgment, levied upon the ginhouse. At sales made under the executions appellant was the purchaser of said machinery and ginhouse. This suit was by Mrs. Fenton, joined by her 4. TENANCY IN COMMON 38(2) ACTIONS Said husband, against appellant. She alleged BETWEEN TENANTS-POSSESSION. Where a part owner wrongfully withheld personal property, another part owner could not that she was the owner of the machinery and ginhouse at the times the executions were respectively levied as stated, and that the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes partition thereof. levy thereon and sale thereof by the sheriff | dered judgment in favor of Mrs. Fenton for therefore was unlawful. She did not allege all the property. According to those findings, that she was not herself in possession of the she at most owned only an undivided oneproperty at the time she commenced her suit, half interest in it. Assuming the facts to nor did she allege that appellant then, or be as the court found them to be, Mrs. Fenever, was in possession thereof. She prayed ton's suit should not have been for the propjudgment for the property, or, in the alter-erty, but should, instead, have been for a native, for its value, which she alleged to be $900. Appellant's answer consisted of a general demurrer, a general denial and a special plea that the property belonged to the community estate between Mrs. Fenton and R. Fenton, and therefore was subject to seizure and sale for the purpose of satisfying his (appellant's) judgment against said R. Fenton. The trial was by the court without a jury, and he found the facts to be as we have stated them. There is no statement of facts with the record sent to this court. The appeal is from a judgment in favor of Mrs. Fenton for the property in controversy. [1,2] To entitle her to recover, as she did, Mrs. Fenton must have alleged, and she did not, either that appellant had wrongfully deprived her of the possession of the property, or that he then wrongfully withheld possession thereof from her. 14 Cyc. 258, 265; 34 Cyc. 1386, 1464; 38 Cyc. 2044, 2068. For anything to the contrary appearing in the pleadings, appellant was never in possession of the property, and Mrs. Fenton was herself in possession thereof at the time she commenced her suit. The general demurrer in appellant's answer, if called to the attention of the court, should have been sustained; and if it was not called to his attention, the court should of his own motion have held that the petition did not state a cause of action. [3, 4] As shown in the statement above, the court found that Mrs. Fenton repurchased of J. R. Fenton the half interest she sold him in the property, agreeing to pay him therefor $400; that of that amount she paid him $247 with money earned by operating the mill and gin; and that the remainder of said $400 remained unpaid at the date of the trial. The effect of those findings was to show that the half interest in the property owned by J. R. Fenton became a part of the community estate between Mrs. Fenton and her husband, R. Fenton. Vernon's Statutes, arts. 4621, 4622; Bank v. McWhorter, 179 S. W. 1147; Epperson v. Jones, 65 Tex. 425; Short v. Short, 12 Tex. Civ. App. 86, 33 S. W. 682. Such being the legal effect of the facts found by the court, of course he erred when he ren [5] The judgment will be reversed, and the cause will be remanded for such further proceedings in the court below as the facts warrant. With reference to such proceedings attention is called to the fact that it does not affirmatively appear from the pleadings of the parties or the findings of the court whether the ginhouse in controversy was personal or real property. 19 Cyc. 1036, 1047. The inference from the description of the property as a "house" probably is that it was real property, in which event, of course, the county court was without power to hear and determine its ownership, or to partition it. G. M. H. WAGNER & SONS v. HARRIS. (Court of Civil Appeals of Texas. San Antonio. 1. ACCORD AND SATISFACTION 1 - WHAT When a statement is received by one party to a controversy from the other, showing the balance due, and payment of that balance is accepted, it constitutes "accord and satisfaction," and is settlement of the claims between the par ties. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Accord and Satisfaction.] 2. ACCORD AND SATISFACTION 1 - WHAT CONSTITUTES. In an action to recover from defendants com missions which they had retained as brokers for effecting a sale, etc., held, that plaintiff's ac ceptance of a payment by defendant, with which was sent a statement of the accounts between the parties, constituted an accord and satisfaction, precluding plaintiff's subsequent recovery. Appeal from District Court, Dimmit County; J. F. Mullally, Judge. Action by C. O. Harris against G. M. H. Wagner & Sons. From a judgment for plaintiff, defendants appeal. Reversed and rendered. T. C. Mann, of Laredo, for appellants. FLY, C. J. This is a second appeal of this case; the result of the first being reported in 195 S. W. 351. A second amended For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes |