8224 Writ of error pending in Supreme Court. *Page 851 The appellant, H. A. Bell, is the father of P. C. Bell, deceased, and the note creating the controversy between appellant and appellee was executed by the deceased, P. C. Bell, in favor of Swim, for the consideration of certain mules sold by the latter to said P. C. Bell. During the pendency of this obligation of P. C. Bell to Swim, the former transferred to his father, H. A. Bell, on January 28, 1909, all of his real estate, and practically all of his personal property, as an assignment, for the purpose of paying his debts. Prior to this assignment of P. C. Bell to H. A. Bell, for the purpose stated, the deceased, P. C. Bell, had conveyed a certain 200-acre tract of land, situated in Wilbarger county, Tex., to one Curtis, for which the latter executed to the former certain vendor lien notes, as part of the purchase money of said property, and these notes were embraced in the assignment by P. C. Bell to his father, H. A. Bell; and upon the 6th day of February, 1911, the said A. G. Curtis, being unable to pay for said land, executed a deed to H. A. Bell of said property, in consideration of the cancellation of the notes previously executed by him for the purchase price of the particular land, said land being designated in this record as the "Curtis tract."
As applicable to the particular issues upon which the cause was tried, the appellee, Swim, by a second amended petition, alleged that upon the 9th day of February, A.D. 1911, the defendant, H. A. Bell, and his son, P. C. Bell, had a settlement of their affairs, and at said time H. A. Bell reconveyed 535 acres out of 735 acres previously conveyed to him, and at the time of this settlement it was agreed between the father and son that H. A. Bell should retain the 200 acres of land conveyed to him by A. G. Curtis, for the purpose of paying the Swim note sued upon, and that the said H. A. Bell, at said time, verbally agreed to pay the note in consideration of his retention in said settlement of said 200 acres of land. It is also alleged by Swim that on the conveyance by Curtis to Bell of the 200 acres of land in consideration of the cancellation of the note as stated, it was agreed between H. A. Bell and P. C. Bell that the former would assume the payment of the note sued upon, or would use the property or the proceeds thereof in payment of the debt.
The trial court, among other issues, submitted the following four special issues to the jury, the first two having been submitted by him of his own motion, and the last two submitted at the request of the plaintiff, and reproduced with the answers thereto:
"1. Was the 200 acres, called the Curtis tract, deeded to H. A. Bell for the purpose of being used, or the proceeds of its sale being used, to pay off the Swim debt? Answer: This land was deeded to pay the P. C. Bell debts.
"2. Was the 200 acres, called the Curtis tract, kept by H. A. Bell after the settlement, testified about as having occurred on the 9th day of February, 1911, for the purpose of paying the Swim debt? Answer: Yes."
Issues submitted at the request of plaintiff:
"First. Did H. A. Bell keep the Curtis 200-acre tract of land in consideration that he would pay the Swim debt? Answer: Yes.
"Second. Did H. A. Bell keep or retain the Curtis 200-acre tract of land with the understanding that he would pay the Swim debt herein sued upon? Answer: Yes."
The appellant assigns that the answers of the jury, in their special verdict to the first and second questions propounded by the court, and to the first and second questions submitted by the court upon plaintiff's request, are contradictory, and a proper judgment could not be based thereupon. The court rendered a judgment in favor of appellee against appellant, H. A. Bell, for the sum of $2,7S1.39, comprehending principal, interest, and attorney's fees. H. A. Bell conveyed the Curtis tract to one Reynolds upon the 16th day of February, 1912, in exchange for other real estate, which Reynolds at the direction of Bell, conveyed to his sons. A previous lien upon the Curtis tract leaves an equity in the property, based upon another finding of the jury, of the value of the land, at $16 an acre, considerably less than the amount of the debt and the judgment. Appellant argues that the issues submitted by the court of his own motion that the land was conveyed by Curtis to H. A. Bell for the purpose of using the same, or the proceeds of its sale, to the payment of plaintiff's debt, or was retained by Bell under the settlement with his son for the same purpose, are, in their nature, contradictory to the answers to plaintiff's interrogatories, to the *Page 852 effect that Bell kept the land, as a part of the settlement, in consideration, or with the understanding, that he would pay the said debt. The logic is, if the first and second findings are true, the fourth and fifth cannot be true, and the judgment could have been only for the equity in the land, and not for the full amount of the debt. The alleged inconsistency is more apparent than real. We are unable to understand why a party could not make a conveyance to another in trust for the purpose of paying his debts, and the trustee assume the payment of the debts, or that the trustee, in consideration of a certain settlement between them, could not agree to retain the property for that purpose, and at the same time assume the payment of a debt, without being involved in the inconsistency as urged.
The evidence in this record suggests that when P. C. Bell directed Curtis, on account of the cancellation of the notes owing by the latter, to convey the land to his father, it was done with an understanding that the father would reconvey to his wife (P. C. Bell's) a portion of the land previously conveyed in the assignment, and also suggests that they were in the progress of a settlement of their affairs, and that H. A. Bell, two or three days after the execution of the deed by Curtis, gave the said P. C. Bell a final acquittance, or receipt, of obligations between them. There is no real contention in this record that the note upon which the suit is based was not a valid obligation of P. C. Bell; there is some testimony, from appellant's standpoint, that it was not regarded by P. C. Bell and wife as a proper obligation against the former, though the jury evidently considered that P. C. Bell had not repudiated it as a debt in his dealings with H. A. Bell. There is no issue joined, nor any evidence offered, upon an issue that P. C. Bell did not owe the debt. Bell received the mules for the note and sold the same, and the record suggests that before the assignment he used a major portion of the proceeds, and the father, after the assignment, used a considerable portion of the same, in payment of P. C. Bell's debts. Swim says that H. A. Bell told him, immediately after the general assignment to him, the purpose of the same, and that he would not reconvey to his son any of the property until his (Swim's) debt was paid, and promised him on his word of honor that he would pay the debt. H. A. Bell reconveyed a greater portion of the real estate to P. C. Bell's wife, and sold 200 acres to one Tombs, retaining the 200 acres conveyed by Curtis, and Swim claiming a repetition by H. A. Bell of his good intentions, with the testimony of Tombs and Martin suggesting the agreement between H. A. and P. C. Bell as to the purpose of the Curtis conveyance and the retention of the land in accordance with appellee's theory of recovery. Upon this consideration and the testimony hereinafter stated, we do not think the different findings are destructive of each other.
Appellant also urges that, taking the previous petitions into consideration, filed by appellee, prior to the one upon which the trial was had, his special exceptions, presenting the two-year statute of limitations, should have been sustained; also that his special answer, alleging the same defense upon the facts, should have elicited from the court a judgment in his favor. We think the allegations and the evidence upon which the special findings are based are sufficient, as to trusteeship, to take the case out of the statute of limitations. If H. A. Bell received the Curtis tract for the purpose of using it to pay the debts of P. C. Bell, or if he retained the land in the final settlement with P. C. Bell for the same purpose, and assumed obligations owing by P. C. Bell, Swim was the beneficiary of the result of these negotiations, and H. A Bell was the trustee, which, if true, was not ended within such time as that the statute of limitations would apply. "As between trustee and cestui que trust in the case of an express trust, the statute of limitation has no application, and no length of time is a bar. Against an express and continuing trust, time does not run until repudiation or adverse possession by the trustee and knowledge thereof on the part of the cestui." Perry on Trusts, vol. 2, § 863. See, also, Babcock v. Wyman, 19 How. 289, 15 L. Ed. 649; Bell County v. Felts, 122 S.W. 269; Gibbons v. Bell, 45 Tex. 417; Robertson v. Dubose,76 Tex. 1, 13 S.W. 300. Of course in case of constructive trusts arising from fraud, which presuppose an adverse holding to the purposes of the trust from the beginning in the trustee, a different rule applies. See Barnet v. Houston, 18 Tex. Civ. App. 134, 44 S.W. 691, wherein C.J. James discusses to some extent this question as applied to trusts. If the trust exists to use the land, or its proceeds, upon the debt, and no time was stated, appellant would have a reasonable time, under the circumstances, to effectuate the trust. The assumption of the debt would necessarily follow the trust, being a part of the consideration creating the trust, and would not mature until this time expired, or until the trust, if it exists, was repudiated.
Appellant assigns that the evidence is insufficient to show that the Curtis tract was conveyed to H. A. Bell for the purpose of paying the Swim debt, or retained by him for the same purpose, in consideration that he would pay plaintiff's debt. When the negotiations between the parties were pending, Martin testified that H. A. Bell told him that the Swim note would have to be satisfied out of the proceeds of the sale of the Curtis tract H. A. Bell admits he afterwards tried to satisfy the Swim note with the equity exceeding the first lieu in the *Page 853 Curtis tract, and $200 to be paid to him by Swim in an amount equaling some fixed charges he claimed to have paid. There is testimony that the deed was not passed, or papers were not "swapped" (as Tombs expressed it), until the final settlement, the day the deed was made to Tombs, and the reconveyance by H. A. Bell to Mrs. P. C. Bell.
We have attempted to analyze this testimony searchingly, with the inferences deducible therefrom, and conclude that appellant's position is entirely untenable. The testimony of Tombs (while not wholly satisfactory) in connection with the testimony of Martin, and the consistent course of conduct upon the part of H. A. Bell (which he says was voluntary, but which the jury evidently rejected) to obtain the cancellation of this note and the settlement of same, induces the above conclusion.
The appellant assigns that the trial court erred in refusing to submit the following requested special instruction:
"Did P. C. Bell direct A. G. Curtis to convey to H. A. Bell the 200-acre Curtis tract of land for the purpose of paying off the indebtedness due by P. C. Bell to H. A. Bell, if any? If you answer this question, Yes, then I instruct you that you answer no further questions propounded in this case."
This instruction, with an affirmative answer, would have eliminated entirely the following issue raised by the plaintiff's pleadings and testimony: Did H. A. Bell retain the land in his settlement with P. C. Bell for the purpose of using the same or its proceeds, in paying the Swim debt?
The most serious question to us, in this case, is the complaint against the permission of the trial court of the reading to the jury of a portion of appellee's petition, alleging defendant's liability on the note sued upon, based upon certain alleged verbal promises, after the same had been eliminated from the case by special exceptions, and also the admission of the testimony of the plaintiff, Swim, over the objections of the defendant, as to the same promises, claimed by Swim to have been made directly to him by H. A. Bell, to pay said debt at different times. The issues were so drawn and the direct testimony of H. A. Bell, assisted by P. C. Bell's mother-in-law, is of such contradictory nature to the theory of the appellee, as to the trusteeship and the assumption of the debt by H. A. Bell, that the writer thinks that the admission of this testimony, especially if not relevant to the essential facts in litigation, was necessarily prejudicial and injurious. But was the testimony irrelevant? We admit the question is not free from considerable doubt and difficulty. And at this point we cite the case of Cathey v. Railway, 104 Tex. 39,133 S.W. 418, 33 L.R.A. (N.S.) 103, by the Supreme Court, as a repudiation of the doctrine in Sullivan v. Fant, 51 Tex. Civ. App. 6, 110 S.W. 507, contended for by appellee, that if error has been committed in admitting testimony, the objector has waived the same by requiring the witness to repeat the same testimony on cross-examination.
The trial court, as noted by his qualification in the bill of exceptions referable to this testimony, partly permitted the same "as throwing light upon the reason for the settlement, and upon the probability of the parties, H. A. Bell and P. C. Bell, making such an agreement as that set out by plaintiff as the basis of his cause of action," which we believe to be the true justification of the testimony, if it exists. In other words: Is the testimony, suggesting a previous contractual relationship of H. A. Bell with Swim, based upon promises from the former to the latter directly to pay this debt, relevant as evidence of a subsequent assumption by H. A. Bell to P. C. Bell to pay the same debt? And as further relevant to the proposition whether the land was held by him in trust, with Swim as beneficiary, for the same purpose? There is no real issue in this cause, as stated, that P. C. Bell did not owe the debt to Swim. There is no dispute but what Bell conveyed all of his property to H. A. Bell for the purpose of paying all of his debts. There are numerous circumstances manifested by H. A. Bell of a significant character which indicate that at least he recognized the justness of the debt of P. C. Bell to Swim. It is undisputed that H. A. Bell used at least a part of the proceeds of the sale of the mules (the mules being the consideration for the note) in carrying out his contract as trustee, under the assignment, for P. C. Bell, in payment of his debts. There is testimony by an apparently disinterested witness of the statements of H. A. Bell to P. C. Bell in terms of strong recognition of the justness of this debt, and why it should be paid, when the last settlement was made.
We are unable to find any case directly bearing upon the particular point, and are guided, as best we can be, by general principles as to the relevancy of this testimony.
Of course there must be some logical connection, either directly or by inference, between the fact offered and the fact to be proved, to make the former circumstance relevant to the latter.
"No precise and universal test of relevancy is furnished by the law. The question must be determined in each case according to the teachings of reason and judicial experience. If the evidence offered conduces, in any reasonable degree, to establish the probability or improbability of the fact in controversy, it should go to the jury. The question as to its admission or rejection addresses itself to the court as one to be answered with a view to practical, rather than theoretical, considerations. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other certain or more probable." Jones Blue Book on Evidence, vol. 1, § 135, pp. 659. 660. *Page 854
There probably could be no question but what antecedent contracts or promises are admissible for the purpose of proving subsequent contracts or promises with some logical connection of a similar nature between the same parties — not wholly analogous, of course, but bearing somewhat upon the question.
In the cause of Wood v. Finson, 91 Me. 280, 39 A. 1007, plaintiff sued the defendant for certain oil delivered on board a certain vessel in Boston, for shipment. The answer of the defendant was that plaintiff failed to insure the oil, and they lost its value on account of the oil having been lost at sea. The question at issue between the parties was whether, when the oil was sold, a contract was made that the vendor would insure the oil; affirmed by defendant and denied by the plaintiff. Defendant offered testimony as to other sales previously made by plaintiff, upon which insurance was placed by plaintiff for defendant's benefit, and the Supreme Court of Maine said:
"* * * While the fact of whether there had been insurance effected on previous sales, or not, might not be conclusive as to what was done in this particular instance, it was admissible on the question of probability or improbability of the contract being as claimed by plaintiff. It was in accordance with this principle that the court, in Trull v. True, 33 Me. 367, held that `testimony cannot be excluded, as irrelevant which would have a tendency, however remote, to establish the probability or improbability of the fact in controversy.'"
The court further said:
"See, also, Tucker v. Peaslee, 36 N. H. 167, and Huntsman v. Nichols,116 Mass. 521, where it was held (in the latter case) that, although the authenticity of the note in suit was the only issue, yet the business transactions between the parties had some bearing upon the probability of the indorsement having actually been made by the defendant, and were therefore admissible in evidence."
Justice Williams held, in the case of Kocher v. Mayberry,15 Tex. Civ. App. 342, 39 S.W. 604, that where the evidence is conflicting as to the price fixed by contract for work and labor, evidence of the value of work and labor furnished is admissible for the consideration of the jury in resolving the conflict; followed by Justice Dunklin in the case of Carver v. Power State Bank, 164 S.W. 892.
It is true that the question of the relevancy of the testimony is whether it has any bearing upon the issue of the assumption of the particular debt by H. A. Bell, and whether he received the property, or retained the same, in trust for the purpose of using the same in payment of P. C. Bell's debt. H. A. Bell testified that in reality his agreement with P. C. Bell was that this property was to be conveyed to him, or retained by him, in payment of some $1,500 that P. C. Bell owed him in final settlement, and emphatically denying that he assumed to pay this particular debt. If, however, he were obligated to Swim at a different time, and made several promises directly to Swim to pay the same debt, we are inclined to think it would have some bearing, and, having reference to the same debt, it would have some logical connection with the proposition and issue that he obligated himself, and received the property, or retained the same, in his dealings with P. C. Bell, to pay the same debt. The relevancy of the testimony as bearing upon what H. A. Bell would do, or be inclined to do, or as to what he actually did in a settlement with P. C. Bell, may be cogent or remote as addressed to different minds, viewing the matter. We do not think the case of Simpson v. Thompson, 43 Tex. Civ. App. 273, 95 S.W. 94, cited by appellant, is in point, and we are inclined to think the testimony was admissible; and, there being no other assignments which we think are deserving of particular discussion, we find no error such as we think should reverse the case, and the judgment of the lower court is affirmed.
HALL, A. J., not sitting.