To empirically affirm the evidence to be undisputed on all the controlling issues in this controversy does not make it so, and upon examining the statement of facts, this member of the court has not found that to be its state, concluding rather that, under appropriate pleadings, it raised legally material issues of fact for the jury concerning at least these features:
(1) Whether the deed from Paul McCombs to W. H. Abrams of March 1, 1906, was in the exercise by McCombs of his power as community survivor to sell the lands it owned.
(2) Whether any interest in the lands described in that deed had constituted the separate property of the plaintiffs' mother, and, if so, how much.
(3) Whether the releases and quitclaim deed from the two of the three plaintiffs to Paul McCombs, exhibited November 12, 1907, in terms purporting to acknowledge the receipt of everything due them from, and to convey to, him all interest in both the community and the separate estate of their mother, had been fraudulently obtained.
(4) Whether the plaintiffs were barred by the statutes of limitation pleaded by the defendants from prosecuting any of their declared upon causes of action.
(5) Whether any of the defendants were such bona fide purchasers for value of the interests severally claimed by them in the lands involved as cut off all right or title of the plaintiffs therein.
Only an outline of the underlying reasons — springing from the evidence — for each point in its order will be undertaken; the basic pleadings for all being obviously sufficient.
(1) Admittedly by the defendants the community estate of Paul and Florence McCombs, up until that time, had owned some interest in the practically 1,750 acres this March 1 of 1906 instrument from Paul alone purported to so sell to Abrams "all my right, title and interest in"; she had died testate on July 19 of 1904 prior thereto, leaving their children, the plaintiffs herein, the share and share alike devisees of all her estate, hence half of such community interest — whatever it was — had already become vested in them by more than 1 1/2 years; it could be divested out of them by their father in no other possible way than through the actual exercise by him of his limited power as the survivor of such community, that is, by such a sale of the whole estate to pay the debts or fulfill the obligations of the community as could be effective only in the event he acted in good faith toward them as the holders of this equitable title derived from their mother; if either legal or actual fraud inhered in the transaction, his potential power was destroyed, and no extinguishment of their title ensued. Eastham v. Sims,11 Tex. Civ. App. 133, 32 S.W. 359; Sanger Bros. v. Heirs of Moody,60 Tex. 96; Lipsitz v. Rice *Page 593 (Tex.Civ.App.) 233 S.W. 594; Morse v. Nibbs (Tex.Civ.App.) 150 S.W. 766; Stone v. Jackson, 109 Tex. 385, 210 S.W. 953; Cage v. Tucker's Heirs, 25 Tex. Civ. App. 48, 60 S.W. 579,581.
The precise question arises here, not upon the general power of the survivor to sell in payment Of community debts, vel non, with which mainly, if not alone, the authorities cited by the majority have to do, but only upon whether or not a legitimate exercise of that undoubted power was shown in this instance as a matter of law; demonstrably, in my opinion, it was not; the burden was on the defendants, claiming under the deed from the husband alone, Paul McCombs, in view of the peremptory instruction in their favor, to conclusively prove the existence of the circumstances authorizing the sale (Eastham v. Sims, supra, Edwards v. Brown, 68 Tex. 329, 4 S.W. 380, and 5 S.W. 87); it seems clear they did not meet it.
Good faith in Paul McCombs as concerned his children's rights when he came to so deal with their equitable one-half interest in that large body of land did not mean, merely, "a bona fide intent to pay a community debt," as the defendants' briefs and arguments seem to me to define it, at whatever sacrifice of their interest, however avoidable such a sacrifice might have been, and in disregard of all disproportion between the value of the property and what he was to get for it. That is not, I think, the sense of the cited holdings of our courts; to me they reflect the wider view that his relationship toward them was a fiduciary one as the repository of a trust he was bound to administer for their best interest; in consequence, although at the same time he may have had a bona fide intention to pay a community debt out of the proceeds, he could not put their title beyond their reach, if — his grantee knowing or being charged with knowledge of such circumstances — he acted in total disregard of their interest, with no existing necessity for the sale, and in return for a consideration either grossly inadequate or personal to himself; the presence of such deterrent conditions would, per sese, constitute legal fraud and defeat the conveyance, whether or not there was wrongful intent. Lipsitz v. Rice, supra; Hand v. Errington (Tex.Com.App.) 242 S.W. 722.
If that be the rule, then, under the evidence received, it seems to me the jury were clearly entitled to find whether or not this sale was fair within itself for the purpose so permitted by law, and did instance a legitimate exercise of the surviving husband's power to sell.
Paul McCombs never qualified by law as community survivor, so at most he had only an equitable right to dispose of the community property, Speer's Law of Marital Rights in Texas (3d Ed.) paragraph 693, Davis v. McCartney, 64 Tex. 584; having so derived it, he was bound to do equity in the proper exercise of that right. The form of the transaction it evidenced, as well as the terms of the conveyance itself, were unusual for — if not reasonably suggestive of other purposes than — the resulting effect now claimed for them by the defendants; in addition, the outside attending circumstances shown and proffered for the consideration of the jury, which were indisputably either known or legally imputable to both parties, since Paul McCombs had from their inception been Mr. Abrams' man Friday in all the latter's dealings concerning these lands, plainly tended toward negativing the existence of Paul's right in equity to dispose of his children's interest.
The deed, a quitclaim in form if not indeed in character, does not specify the interest in the land the parties intended thereby to deal with; its recitations, which might as readily mean either that the entire community interest or only the grantor's one-half thereof was to pass, rather enigmatically ran: "In consideration of the conveyance to me of one hundred acres of land in the George Tennille survey, and the assumption by W. H. Abrams of the debt I owe to the Land Mortgage Bank of Texas for the purchase price of the land described herein, I hereby sell and convey to said W. H. Abrams of the County of Dallas and State of Texas, all my right, title and interest in all the land described."
Had his wife, Florence, the mother of plaintiffs, not then been dead, the contention that as a matter of law this deed conveyed the entire community interest might be sound, under the principle applied in the early case of Poe v. Brownrigg, 55 Tex. 133, where the wife was living, that the husband was presumably conveying the right, title, and interest, which by his own act alone he had the right to pass, that is, the whole community interest rather than his own one-half; that was true because our statute then, as well as ever since (present R.S. art. 4619), provided in substance: "During coverture the common property of the husband and wife may be disposed of by the husband only"; but when Paul McCombs on March 1 of 1906 came to thus deal with their common lands, the prior death of his wife, which W. H. Abrams himself informed him of bytelegram, had changed all that; no such presumption therefore inured to the benefit of either himself or Abrams, and, not having qualified at law as community survivor, both he and his grantee with even imputable knowledge were dependent upon his doing equity toward those to whom it had passed before a disposition of his deceased wife's half of the community property could be effective between them; and so, especially with the deed in the ambiguous language it was couched in, extrinsic evidence of the *Page 594 attending circumstances in order to determine what the parties meant by it, as well as whether or not it reflected a legitimate exercise of Paul McCombs' so qualified power to sell the community lands, was not only admissible, but made a jury question out of the whole inquiry. Jones v. Harris (Tex.Civ.App.) 139 S.W. 69; Iiams v. Mager (Tex.Civ.App.)216 S.W. 422; Bell v. Wright, 94 Tex. 407, 60 S.W. 873; Right-of-way Oil Company v. Gladys City Oil, Gas Mfg. Co., 106 Tex. 94, 157 S.W. 737,51 L.R.A. (N.S.) 268.
The suggestion is respectfully ventured that the authorities cited and relied upon for a contrary conclusion do not, for the reasons indicated, so hold upon a legal equivalent of the state of facts here obtaining; that is, they were all based either upon conveyances, or at least agreements, made during coverture, or upon materially different attending circumstances.
Neither, in my opinion, is this controlling deduction in any wise answered by the argument that the facts here bring into play the recognized power of the community survivor to perform agreements made during the existence of the marriage, which, under such cases as Stramler v. Coe, 15 Tex. 211, is sought to be applied in support of the view that the deed in question from Paul McCombs passed the whole title in this land to Abrams; how this transaction can be metamorphosed into one of that sort is, confessedly, beyond my ken; to do so is in effect to assume as a matter of law, in the face of testimony of much probative force tending the other way, not only that the respective deeds dated February 16, 1901, from the bank to Paul McCombs conveying the 1,700 acres and from the latter to W. H. Abrams conveying to him an undivided one-half interest therein, were only executory as between them, and did not first vest the whole title to the land in McCombs and then in turn an undivided half thereof in Abrams, that Abrams was really in privity of contract with the bank as one of the purchasers from it of the land, that the March 25, 1901, letter from McCombs to Abrams, quoted in the majority opinion, did not reflect the real agreement between the two as to what interest in the land should then vest in each and on what terms, but also that the purported second letter, likewise so quoted, bearing date of February 16, 1901, had been a genuine and contemporaneous part of this original deed to Abrams for only a one-half interest, which admittedly had then been delivered by McCombs to Abrams and filed for record by him in Brazoria county on April 15th of 1901.
In the first place, the evidence repels any suggestion that the title to the whole 1,700 acres did not under the deed from the bank to him then vest in McCombs absolutely as the sole purchaser, subject only to his grantor's right to collect the unpaid purchase money, it undisputedly appearing from the testimony of Mr. Humble himself, who acted for the bank in the sale to McCombs, that it never knew Mr. Abrams in any relation to the transaction until January of 1906, when Mr. Humble was so advised by him in response to an inquiry. Abrams, by subrogation to such right in the bank from having paid its debt for McCombs, could in no event have acquired any greater right than it had — merely security for the debt. Humphreys-Mexia Co. v. Gammon, 113 Tex. 247, 254 S.W. 296,29 A.L.R. 607.
Furthermore, defendant Paul McCombs positively testified that he and Mr. Abrams closed the trade and fixed the interests in the land between them pursuant to the terms of this letter of March 25, as follows: "Now on the 25th day of March, 1901, as I have testified, I had a talk with Mr. Abrams and he and I orally agreed on what deal would be made and he told me to go back to my office and write it up and I did, and submitted it to him and he approved it, yes sir. He gave me $800.00, yes sir. * * * It is true that Mr. Abrams and I agreed on it, and he sent me to my office and I wrote it up, and he approved the way I wrote it and gave me $800.00 under this letter of March 25."
It could not therefore have been merely a tentative offer, and not inconsistent with the second letter so quoted by this court.
In the second place, the question of the genuineness of this purported second letter bearing the date of February 16, 1901 — irrespective of its directly contradictory nature to both the one of March 25th that McCombs so swore the several interests were fixed under and to the record title between them of an undivided one-half interest in each as it stood there unquestioned by any one from April 15, 1901, until January of 1921, when McCombs further swore he found this second letter in Abrams' office in Dallas — was clearly one for the jury under all the evidence; nobody vouched for this paper but defendant Paul McCombs himself; the doubtless inadvertent statement at the bar of this court, on oral argument by the able and high-class counsel for the Abrams defendants, Mr. Townsend, that he was present when this document was so "found," is dehors this record and entitled to no consideration whatever; he was not even a witness.
McCombs' testimony about it reveals, not only such inconsistencies between it and other records, papers, and practices in evidence as to make more than one choice between them reasonable, but also about four rationally irreconcilable, if not mutually contradictory, versions of just what the transaction about this land between Mr. Abrams and himself in fact was; this document, *Page 595 although supported by him alone as vitally affecting the title to the land, was so drawn that it could not be recorded, not being acknowledged or witnessed; then, with the record by the acts and to the direct knowledge of both showing the two to have undivided half interests each, this paper which, if effective, gave Mr. Abrams a much greater interest, was intrusted by him to Paul McCombs, and by the latter placed among the former's papers, where he left it, without ever telling his children, the plaintiffs, that it existed, until he was hunting evidence on which to defend this suit against himself and Mr. Abrams in January of 1921; Mr. Abrams, he affirms, invariably kept letter-press copies of all important papers relating to the titles of his lands, and such copies of the deed of February 16, 1921, and its accompanying letter of March 25th, on which he elsewhere swore they had made the trade whereby he conveyed a one-half interest in the land to Abrams, were preserved and are in this record, but there was no such copy of this paper.
His four accounts were: (1) That he and Abrams orally agreed that Abrams would advance him money for his part of the cash payments on a one-half interest in the land, and pay it back out of the salary Abrams was paying him, he to thus repay Abrams as and when he could. (2) That the quoted letter of March 25, 1901, under which the title to the land was procured from the bank, evidenced their agreement, the arrangement for repayment of advances by Abrams for McCombs' half being expressed in the letter (though not in the oral agreement) only as to the first $800 payment, and that advancement to be repaid at the rate of $100 per month. (3) That the herein called second letter, which bore the date of February 16, 1901, but which he at first testified had been actually written on or about March 27th, or two days after the one on which the deal had been so closed, was in fact their controlling understanding; it contradicted both the preceding ones, in that under them the title was vested equally in Mr. Abrams and himself, whereas under this the equitable title to the whole of the land was to both vest at that time and remain in Abrams, except to the extent that McCombs should pay and only if and when he paid, or to quote his exact testimony on the point: "It is true that the two deeds, Humble's company to me and mine to Abrams and these two letters, Exhibit No. 108 and Exhibit 110, dated the twenty-fifth of March, 1901, and the sixteenth of February, 1901, constitute the whole transaction. I was to take the property in my name. He was to pay it, and I was to return as much as I could, and then he was to deed me whatever part of the land I paid for. I was merely trustee, holding that in my name for his benefit." (4) On having this contradiction called to his attention, he finally swore that the two letters and the, two deeds he had just stated comprised the deal did not do so, but that only the last-mentioned letter and the two deeds did.
This letter, which he thus at last hangs the whole case for himself and the Abrams defendants on, is likewise incompatible with his two "histories" of this transaction of 1903 and 1904, respectively, that are in evidence; each of these purported to be a complete history of the transaction to its date, both not only failed to mention any different or additional agreement, but also expressly contradicted this alleged second letter of February 16, 1901, by reciting that Abrams had bought from and held under McCombs a one-half interest in the land.
While what has thus been outlined indicates only part of the testimony, it is deemed sufficient support for the position taken.
In this connection no stop is made to consider the intrinsic effect of this letter of February 16th, if genuine, since it is only here maintained that the jury should have been permitted to pass on whether it was so or not; however, its terms did not purport to authorize a partition, and, if they had, there was evidence tending to show the McCombs' interest to then comprise more than 200 undivided acres, instead of an unincumbered 100 acres, segregated out of the least valuable of the 1,750 acres.
Since, under these considerations, the peremptory instruction was not justified on the theory of a post mortem execution by her surviving husband of an agreement touching their common property made while Mrs. McCombs was living, recurrence is had to the particularization of just a few of the before-mentioned attending circumstances that made a fact issue out of whether or not he was otherwise exercising such a survivor's power in then making the March 1, 1906, deed to Abrams.
The method pursued was at least calculated to mislead; instead of conveying to Abrams the whole of the land less a specifically described 100 acres, it merely and nebulously recited "in consideration of the conveyance to me of one hundred acres of land in the George Tennille Survey in Brazoria County, Texas, by deed of even date herewith," describing therein no land at all, so that specific performance of a contract to convey it could have been enforced, nor was any such conveyance then or thereafter ever produced or recorded in the deed records of Brazoria county, only a letterpress copy thereof from the files in Mr. Abrams' office being offered in evidence on this trial; putting the record of their transaction in this condition, and so leaving it until this trial in 1928, whatever their intent or objective, left nobody else in position to know what had been done, and destroyed any possibility of a continuing presumption that any defined 100 acres could be *Page 596 the proceeds of the sale of the whole community interest; in addition, as the majority of this court properly find, there was sufficient evidence to raise the issue of actual and fraudulent concealment from his children by Paul McCombs that there was any land in Brazoria county belonging to their mother; the witness J. D. Crutcher of Dallas, uncle of the McCombs children and their attorney in their controversy with their father over their mother's estate in 1905-1907, testified to this conversation about the matter at that time with Paul McCombs:
"I said: `Where is Florence's interest in this Silliman land you were going to get so rich on?' and he said: `Well, we lost that under foreclosure proceedings.' I said: `That is about what we talked about you would do.'
"After I had this conversation with Paul about the whole estate — what the property consisted of, I went over to see Colonel Abrams and asked him about this Brazoria County land. I wanted to confirm and see whether or not there was anything to it. I was objecting in the case, objecting to certain property there being listed as community and I wanted if I could to ascertain which was community and what was separate and what Colonel Abrams would tell me. I asked him about this property and he told me they had lost it. I said: `Well, how did you lose it?' He said: `Well, it was taken by foreclosure.' He said: `Paul knows all about the details of it. I don't know. I didn't keep up with it.' And he said that the payments were kept up for a while but that the property didn't turn out like Paul thought it would, and for me to get all the information out of Paul — that he would give it to me."
There was too ample testimony, much of it from two land value experts in that locality, the witnesses, John Underwood, grandson of the original owner of this land, and Judge Bartlett, justice of the peace, that on March 1, 1906, the value for agricultural purposes only of this entire 1,700 acres was an average of $20 per acre, while the like value of the purported 100 acres in its northwest corner that McCombs said he got as part consideration for his deed for the balance to Abrams, and on March 23d of 1914 essayed to convey back to him, was only $10 per acre; that oil prospects were then limited to the area around the southeast corner of the land as a whole, where the market value for oil of small tracts has enhanced, sales of neighboring lands having been made for $30, $50, and $300 per acre; that both Paul McCombs and Mr. Abrams were advised of these conditions is at least reasonably inferable from many other circumstances in evidence, both having visited the land, having participated in the Tennille suit settlement in 1904 when Tennille's attorneys selected the 100 acres for him out of the southeast corner, Mr. Abrams having had a report as to the "expected oil fields," and both having leased the lands for surface uses and taken care therein on Mr. Abrams' insistence to reserve all mineral rights; in a word, the testimony referred to was sufficient to support a finding that the equity of the McCombs' community half interest in the land, after the purchase price, taxes, and all advances made by him had been refunded to Mr. Abrams, and not counting at all the additional oil values so given, was then of the value of $13,755, whereas that of the 100 acres claimed to have been received for it was only $1,000, and this was still subject to its proportionate part of the assumed debt, along with taxes — plainly such an inequitable consideration as raised an issue concerning the good faith of the parties to the transaction.
The jury were further entitled to determine from evidence clearly sufficient to raise those issues, whether this sale of 1906 was made for the benefit of the community, in exercise of the measure of discretion vested by law in the survivor in such circumstances, and under the compulsion of necessity, or in abrogation of McCombs' fiduciary relation toward his children's interest in that community, without any reasonable necessity because no debts against it were pressing, and for a consideration so inadequate and inconsequential as to amount to frittering away their birthright for a mess of pottage in response to some personal consideration to himself, or other improper motive; when his surroundings at that time are taken into consideration along with it, Paul McCombs' own testimony goes far toward making a jury question out of the whole matter; he had married again and become the head of a new community in January of 1905, he had already ordered his son Melvorne "to get out and stay out" of his home, had filed application in the probate court of Dallas county to be appointed administrator, with will giving her estate exclusively to her children annexed, of his deceased wife's estate, reciting only that she had left two houses and lots in the city of Dallas, the smaller being her separate estate, and the larger the community of herself and petitioner; as above indicated, the net value over and above the incumbrance of half the land was at least $13,755, and, according to several witnesses, there had been for several years practically continuous operations for oil in the neighborhood — oil having already been produced on the nearby Arnold tract — with such resulting enhancement in values that sales in small tracts in the immediate area of the southeast corner of this land had been made at $30, $50, and $300 per acre, all of which facts, by fair inference at least, it is reasonable to conclude were then well known to Paul McCombs; the unpaid purchase-money debt to the bank then amounted all told to only $6,500, and it is undisputed, not only that Mr. Humble for the bank was not pressing for its full payment, being willing to carry it along indefinitely on the liquidation *Page 597 of interest and other small payments, but that Mr. Abrams was both able and willing to meet all those payments as so required and to carry the McCombs' community for its portion thereof for Paul McCombs without any different arrangement than had before been existing between them; yet, although he had previously been down to see the land three or four times every year up to 1906, admittedly he neither visited it during that year before executing this deed to it on March 1, nor talked with Mr. Humble about it, nor made any inquiries about nor efforts to sell any part of it, but instead went to Dallas "and threw up my hands to Mr. Abrams, and said I was through and wanted to quit," further saying:
"At the time of this exchange of deeds, at the time that I had that deed in my hands, I expected to come down here in two or three days. And I was throwing up my hands and saying: `I don't want to investigate the land; I don't want to see what I can do with it; I am through,' yes sir, that's it. Mr. Abrams didn't ask me to do that. It was on my own initiative, absolutely. He would have carried me just as far as I wanted him to, yes, sir. On my own insistence, two or three days before my planned trip down here, I insisted on giving up my rights here, yes, sir, that's right. I didn't take it up with my children at all; didn't think I had any business to take it up with them. In answer to your question `Why the hurry about closing the deal with Mr. Abrams? Why do it on the 1st of March when you could wait and come down here and see what you could do with that equity of five thousand dollars, or more, that you have testified you had in that land?' the 1st of March didn't apply to it; I wanted to get rid of it and I did; it was a very deliberate process on my part; I didn't believe I could pay for it, and I didn't want to continue to try to. The proposition didn't appeal to me and I wanted to get rid of it, yes sir."
In my opinion, he could not have done in the prevailing circumstances what he thus confesses he did do, and yet he held as a matter of law to have been in good faith in so deeding away the whole community interest in 1,700 acres of land.
(2) Approach is made to this question in much respect to what our courts have held to be the requirements for engrafting a parol trust upon the legal title to land; as apropos to the state of the case here involved that seems to me to be well reflected in these cases: Blumenthal v. Nussbaum (Tex.Civ.App.) 195 S.W. 275; Johnson v. Bingham (Tex.Civ.App.) 251 S.W. 529; Briscoe v. Bright's Administrator (Tex.Com.App.) 231 S.W. 1082, 1084; Carl v. Settegast (Tex.Com.App.)237 S.W. 238; Howard v. Zimpelman (Tex.Sup.) 14 S.W. 59.
The rule as to the quantum of proof is, in consonance with the other holdings cited, thus aptly and with express approval of our Supreme Court epitomized by the Commission of Appeals in the Briscoe Case: "It only requires that the terms of the contract essential to recovery be supported by evidence sufficiently clear for the court to determine what those terms were without resorting to inference or conjecture."
In no event, of course, did their father as community survivor have any power to divest — by the deed from himself — these plaintiffs of an interest in the land that had been the separate property of their mother — that, in preface, is laid down as a legal axiom.
When tested by the quoted rule, the evidence here seems to me to have plainly raised the issue as to the claimed existence of a parol trust; the testimony of the witnesses, C. F. and J. D. Crutcher alone — corroborating each other, and in turn being corroborated in material particulars both by instruments of record and other witnesses — clearly and satisfactorily reflects the existence of an explicit and completed trust, agreed to by Paul McCombs, and both known to and acknowledged as having been in fact established by W. H. Abrams. These two men, brothers themselves, and both brothers-in-law of Paul McCombs, each having married a sister of his wife, were the uncles of his children and in intimate family and business association with him during all the time here material; the one, J. D., was a lawyer, who had represented the McCombs children in the controversy with their father over their mother's estate in 1905-1908, as to the releases and quitclaim deed in which this court has found an issue of intentional fraud on his part toward his children was raised, the other was a real estate man at Dallas, in whose home Mrs. Florence McCombs had died after an illness there of three weeks; both men then knew Mr. Abrams also; in material substance they testified:
(1) Mr. C. F. Crutcher:
That in 1904, Mrs. McCombs had owned separate property in Dallas that had come from members of her father's family worth $40,000, incumbered for about $4,000; that in 1901 he had a conversation with Paul McCombs about the purchase of about 1,700 acres of land in Brazoria county; that Paul said he intended to buy a half interest for his wife, Florence, and that her brother, Nat P. Jackson, had given her $400 with which to pay the cash payment; that he himself had done $1,000 worth of surveying work on the land, which he would let go in also; that he had a subsequent conversation with Paul — he thought it was in January of 1901 — at which time Paul told him that he had taken this $400 cash payment which his wife had so given him, and had given the $400 to W. H. Abrams, and that Abrams would pay the $800 for the cash payment in check to the *Page 598 owners of the land for the two interests — the interest of Mrs. McCombs and the interest of Mr. Abrams; that about two weeks before her death, that is, about July 4 of 1904, he heard a conversation in his home between Florence and Paul McCombs at which Paul told his wife he would either have to borrow money on or sell some of their lands about Rockport or in Brazoria county, and to which she replied by directing him not to sell, or use the Brazoria county lands to raise the money, saying she would not sign a deed — "that she didn't want to sacrifice her Brazoria County oil land"; further, that the witness had a conversation with W. H. Abrams with reference to the land after the purchase of the land; that this conversation was in the witness' office, Col. Abrams coming to the office to look out of the window to watch a parade. That before Col. Abrams left he asked the witness whether he had seen Paul McCombs and where he was, and where Florence McCombs was, and added "that he (Colonel Abrams) and Florence McCombs owned some lands together down in Brazoria County; some oil lands he called them at that time." That he had some information about oil prospects and wanted to see Mrs. McCombs and tell her what he thought about the land.
(2) Mr. J. D. Crutcher:
The first conversation in February, 1901, was that Paul McCombs told him he wanted Charley Crutcher to have his wife join Paul's wife in the purchase of a big tract of land in Brazoria county, about 1,700 acres, called the Silliman tract, worth $10 or $12 an acre, which could be obtained for about $4 subject to a mortgage. That McCombs stated he had discussed the matter with Charley Crutcher; stated that Nat P. Jackson had given Florence McCombs $400, and that it would only take $800 to swing the transaction; that, if Charley's wife did not purchase a half interest he would sell that half interest to Abrams, and that Abrams would then own it jointly with his wife, Florence.
That a short time later the witness had another conversation with Paul McCombs, in which McCombs referred to the matter; that McCombs said that Clara, Mrs. Charles Crutcher, did not want it, and that Abrams had taken the other half interest along with his wife, and that Abrams and his wife, Mrs. McCombs, owned the land; that this was shortly afterward, some time in March, 1901.
That subsequently the witness had a conversation with W. H. Abrams; the witness happened to be in the office of Capt. Beckwith, or the office of Mr. Abrams, and saw Mr. Abrams and told him: "Paul informs me that you and Florence have bought some land in Brazoria County." To which Abrams replied: "Yes." That he then told Abrams to watch out for the deferred payments, which the witness laughingly referred to as "echoes." That subsequently the witness had another conversation with Mr. Abrams about the land; that this was about 1907, and was in regard to the administration that Paul McCombs was having on the estate of Mrs. Florence McCombs and about the sale of the Main street property. This third and last conversation with Mr. Abrams here referred to has been hereinbefore detailed, beginning on page 9 hereof.
Paul McCombs denied all these witnesses said, except as to numerous details it is deemed unnecessary to refer to.
This testimony, if true, traced he specific sum of $400 of Florence McComb's separate funds into this land for the expressly agreed upon purpose of constituting it pro tanto her separate property, which vested interest was thereafter recognized, acquiesced in, and acknowledged as existing by both Paul McCombs and W. H. Abrams, thereby comprehending all the essential elements of a trust and leaving nothing to inference or conjecture.
That it was admissible against Paul McCombs himself, a defendant here, and all those asserting a claim of title from him under his deed to W. H. Abrams of March 1, 1906, and thereby claiming to be in privity with him as embodying declarations against interest, seems to me not debatable. Whether the defendants, or any of them, were entitled to the instructed verdict a warded, because of limitation or bona fide purchase, is an entirely different and immaterial consideration on this question; they all do, in fact, claim under that deed, hence cannot on account of its alleged hearsay character exclude the testimony tending to establish the parol trust against their grantors. Wigmore on Evidence (2d Ed.) § 1082.
(3) In view of the majority finding that the evidence raised the issue as to the fraud alleged concerning the quitclaim deed and releases executed by two of the McCombs children, which has my concurrence, it becomes unnecessary to elaborate upon that question; to waive that issue aside, though raised, however, as being immaterial to any right of any party to the suit, is not agreed to; obviously, if issues (1) and (2), supra, were also raised, no such discarding could occur, for the reason that, should the jury find in response to those two that the plaintiffs had an interest in the land — whether emanating from their mother's community or separate estate — that did not pass to Abrams under the 1906 deed, the grantors in the release and quitclaim would further be entitled to a finding on whether or not it was divested out of them by those instruments; in that event, too, it being so found that the 1906 deed had failed to convey to Abrams the plaintiff's interest in the land, it would follow that his alleged *Page 599 contemporaneous effort as a part of the same transaction to convey back to Paul McCombs 100 acres that, by a claimed presumption, became property of the McCombs community, was equally ineffective as concerned plaintiffs, because he had acquired nothing of theirs to reconvey; for the same reason it would also result that, as to the plaintiffs, no sale of any such 100 acres from Paul McCombs back to Abrams on March 23 of 1914, whether Abrams innocently undertook to then so purchase for value or not, could have had any effect. The main dependence of the defendants against the fraud issue thus found to have been raised for the jury, however, seems to be that the trial decree of the probate court of Dallas county settled all claims of plaintiffs against their mother's estate, community and separate, and cannot by this suit be attacked collaterally.
As complete answers to this contention, it is suggested, first, it conclusively appears from the records therein, that the 1,700 acres here in question was neither inventoried nor a part of the properties with which either that court or the guardianship court of El Paso county in the matter of Helen (McCombs) Overton's estate actually dealt; the several orders of those courts discharging Paul McCombs as administrator of his deceased wife's estate and Peyton Edwards as Helen's guardian, respectively, as having distributed to the plaintiffs all they were entitled to both from their mother's community and separate estates, having in fact to do exclusively with other properties, could not affect the title to those different ones sued for herein, Griffith v. Godey,113 U.S. 89, 5 S. Ct. 383, 28 L. Ed. 934; Thomas v. Hawpe,35 Tex. Civ. App. 311, 80 S.W. 129; second, if it could be said that any part of this land was involved in those proceedings, however, on account of the hazy reference to Paul McCombs' inventory as such administrator to "100 acres of the George Tennille Survey in Brazoria County, community property, valued at $400.00," then beyond a doubt the evidence raised the issue as to — if it did not compel the finding of — such fraud by Paul McCombs on both the parties in those different proceedings and the courts that entered the relied upon decrees therein as rendered them wholly void, in that he misled them all into believing and acting upon his statement that neither the McCombs community nor Florence McCombs' separate estate then owned any land of any value whatever in Brazoria county; under those representations to the plaintiffs here and their attorneys, as well as to the courts themselves, he both procured the releases and quitclaim deed now under review as constituting full payment for everything due the children from both estates of their mother, without in fact, paying them anything on account of this Brazoria county land, and the entry of the two decrees so adjudging.
In no event, it seems to me, can an affirmance be had as to Paul McCombs; though a defendant — the only one who personally participated in the challenged transaction with Abrams — he yet has no defender; he stands briefless and unanswering in this court, although charged, on evidence sufficient to raise issues of fact about it, with fraud against his children in having — through concealment Mr. Abrams must be held to have known of — withheld from, as well as acquired after, the 1906 transaction personal interests for himself in this land that at least belonged to the community estate of himself and their mother; and below was awarded judgments against them for interests in two tracts of this land — one-third interests each in 50-acre tract G and 30-acre tract C; he himself had first conveyed all the large tract inclusive of these small ones to W. H. Abrams, and later received conveyances to them back from Abrams; while under the evidence it would seem to me an invasion of the jury's province to hold Abrams as a matter of law to have been an innocent purchaser of these smaller tracts, still McCombs would hold the fruits of his own individual fraud against them, if it were found to have existed, in trust for his children unprotected by Abrams' good faith, under this exception to the general rule by which a purchaser with notice is protected to the same extent as his vendor, if the vendor in turn was a purchaser without notice.
"The rule, however, is subject to qualification. Thus it is held that though a bona fide purchaser of land has taken it free from unknown equities, still if the prior grantor in whose hands the land was charged with equity and through whose conveyance to a bona fide purchaser it was discharged, reacquires title from or under such bona fide purchaser, the equity will reattach to the land in his hands. And on a resale of the land by such grantor, his grantee will take subject to the reattached equities, unless he himself occupies the position of a bona fide purchaser." 27 Ruling Case Law, p. 685, and footnote citations.
(4) Since, apparently, neither the trial court nor this court has held the plaintiffs barred in any respect by the interposed statutes of limitation, extended presentment here of the affirmative view that they were not shown to have so been as a matter of law, at any rate, would seem not to be called for; the fully proven several disabilities of minority, coverture, and the lack of any definite knowledge until about October of 1920 of even the existence of this tract of Brazoria county land as having belonged to both or either of their parents, as well as of its having been involved in the deeds of 1906 and *Page 600 1907, which they charged had both been fraudulent as to them, continuously tolled all the adversely pleaded limitation statutes as to them from the death of their mother in 1904 until 4 years after they discovered, or in the exercise of due care should have discovered, the existence of such alleged fraud, if in fact it ever occurred, R.S. arts. 5518 and 3996, Dean v. Dean (Tex.Civ.App.) 214 S.W. 505; 17 Ruling Case Law, 859; Hand v. Errington (Tex.Civ.App.) 233 S.W. 567; Rutherford v. Carr, 99 Tex. 101, 87 S.W. 815; Burnham v. Hardy Oil Co., 108 Tex. 555,195 S.W. 1139; Humphreys-Mexia Co. v. Gammon, 113 Tex. 247, 254 S.W. 296,29 A.L.R. 607; that the evidence did at least raise the issue as to the existence of the fraud has already been pointed out, and plaintiffs filed this suit to recover the land in December of 1920, and to cancel these two deeds on account of the fraud in October of 1922, further averring in 1927, on allegedly newly discovered evidence, that an undivided interest in the land had been their mother's separate property.
So that, under the authorities cited and the evidence, the jury should have been permitted to find (1) whether the fraud was committed, and (2) whether the plaintiffs were in the exercise of reasonable diligence in not having discovered it before they did about October, 1920.
Other than as to these two issues of fact under the 4-year statute, which alone ruled the counts for cancellation for fraud (Thomason v. McIntyre, 113 Tex. 220, 254 S.W. 315), I think the facts indisputably developed conclusively negatived the applicability of either the 5, 10, or 2-year statutes, that is: (1) the plaintiffs were shown to be cotenants with their father and W. H. Abrams prior to March 1, 1906, and no adverse possession against them for the severally required periods of which notice was given or brought home to them occurred, under these authorities: McCoy v. Long (Tex.Com.App.) 15 S.W.2d 234; Chance v. Fortenberry (Tex.Civ.App.) 247 S.W. 890; Arrington v. McDaniel (Tex.Civ.App.) 4 S.W.2d 262; White v. McGregor, 92 Tex. 556, 50 S.W. 564,71 Am. St. Rep. 875; Clements v. Texas Co. (Tex.Civ.App.) 273 S.W. 993. (2) No oil was removed from the premises by the defendants until July of 1920, wherefore the 2-year statute (R.S. art. 5526) could not have barred the action for conversion of it, begun in December of the same year.
(5) The Abrams defendants acquired all their interest in both the land and its proceeds under two deeds from W. H. Abrams of date July 29, 1920, and August 5, 1925, respectively, the consideration for the first being love and affection and $10, that for the second being a trusteeship, hence none of them through such instruments became, independently, such bona fide purchasers for value as to cut off any equities the plaintiffs might have had; in other words, they still stand in the shoes W. H. Abrams himself would now be wearing, had he retained the property.
The defendant Texas Company, in its turn, seems to me to occupy no better position than would its mediate predecessor, the Producers' Oil Company, which the former's immediate predecessor of the same name as its own but of different domicile absorbed or reassimilated for a consideration paid "in cash or credit" as a mere subsidiary, would have been in, had it not transferred the lease; in such circumstances, it cannot be said as a matter of law that the present company was not chargeable with notice of the same facts the Producers' Company knew or should have known.
So the question whether either they or it are to be protected as innocent purchasers is determinable upon whether or not W. H. Abrams and the Producers' Company, respectively, would have so been.
On considerations already indicated herein for a different application, I do not see how either set of them can be held to be such as a matter of law; for instance, the previously quoted granting clause of the March 1, 1906, deed, under which all derived their claimed interests, apparently only purports to pass the title of the grantor, rather than the land itself, while elsewhere reciting an assumption of the purchase price debt against it, hence raises such an ambiguity as required recourse to the attending circumstances to determine which was meant, Cook v. Smith,107 Tex. 119, 174 S.W. 1094, 3 A.L.R. 940; Harrison v. Boring, 44 Tex. 255; Houston, etc., v. Niles (Tex.Com.App.) 255 S.W. 604; Benton Land Co. v. Jopling (Tex.Com.App.) 300 S.W. 28; neither does the use of the word "premises" in the also quoted habendum clause clarify the uncertainty any, since it does not indicate that anything other than a quitclaim was intended. Threadgill v. Bickerstaff, 87 Tex. 520, 29 S.W. 757.
Under the recent approval of the Supreme Court of the opinion of the Commission of Appeals in Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025, there is also serious doubt as to whether the 1914 lease to the Producers' Company from Abrams, under which all the oil has been produced, was such an instrument as the grantee could become an innocent purchaser under, since there was unquestionably none other than a merely nominal consideration at the time of its execution, when the then severed mineral estate became vested in the lessee.
It may be that findings on the herein suggested intervening fact issue would determine the corporate defendant to be such an innocent holder of all the rights conferred by the lease, at least until it was served with *Page 601 citation in this suit on January 7, 1921, but even that would not wholly dispose of the plaintiffs' claims, because, by the express terms of the lease, its interest was seven-eighths only of the minerals, one-eighth thereof being reserved to the grantor to be paid in kind at the well or in pipe lines, which net one-eighth would still remain subject to such claims as between the plaintiffs and the Abrams defendants. Waggoner Estate v. Wichita County (C.C.A.) 3 F.2d 962.
It goes without saying that Paul McCombs was not and could not be protected by the law of innocent purchaser; as to the Abrams defendants, the whole question, in my already indicated view, depends upon whether or not there existed such infirmities in Paul McCombs' various dealings with and conveyances to W. H. Abrams — whether from lack of power or because of fraud — as prevented his thereby acquiring all the plaintiffs' interest in this land, of which he then either knew or should have known, and that, under all the facts and circumstances in evidence, these inquiries were exclusively for the jury.
Under the accepted rule that the evidence must be considered most favorably toward the plaintiffs, discarding all that tends otherwise, and all conflicts, however strong, I cannot hold this cause to have been one for disposition by peremptory instruction; this dissent from an affirmance of such a judgment is earnestly entered.
Additional Opinion.