On Motion for Rehearing
Careful and painstaking consideration has been given to appellant’s motion for a rehearing. In the consideration of this motion we have considered plaintiff’s deposition, which was neither introduced in evidence nor offered in evidence. Likewise we have considered the testimony tendered by appellant to which objection was sustained. We have reached the conclusion had the deposition and other testimony been admitted the result must have been the same.
The title appellant asserts herein has as its basis an alleged oral contract between him and Stanfield, one of the defendant’s predecessors in title. This contract, according to the version of appellant, was that appellant was to locate the oil land, Stanfield to obtain a lease or leases and to drill the first well at his own expense. Stanfie'd and appellant, as expressed ¡by plaintiff, were then to be “fifty-fifty”. This term appellant construes, not without some reason, as a contract to became partners, or joint adventurers, as to the lease or leases. The most liberal construction of appellant’s testimony his deposition and the rejected testimony does not raise the issue that Stan-field was to take title to' the lease or leases in their joint names. The leases acquired imposed obligations on Stanfield; he was to reimburse assignor for taxes paid and to be paid; there was a conditional limitation in the leases unless rather extensive and expensive development was commenced within sixty days the leases expired by their own limitation. In order to recover this property appellant must rely on the alleged oral contract. If the court cannot enforce this contract, from what source does the alleged obligation of Stanfield arise to drill the well at his own expense?
One of the basic constituents of a constructive trust is restitution — restitution of the property of the cestui que trust with which the property, the subject of the trust, has been acquired. The only thing that could give him a right in this property was the oral contract, according to his testimony. For his services he was to receive one-half of the property which was to be acquired by Stanfield. Under his testimony we think it was contemplated that the title was to be taken in the name of Stanfield, one-half of same to' be held for the use and benefit of appellant. If this be correct we have an express trust, which appellant can not assert by reason of Section 7 of Article 7425b of the Texas Trust Act. If this is not and proper construction, of the parol contract ¡between appellant and Stanfield, then we have a case where Stan-field orally agreed to convey to appellant a *453half interest in the property when same was acquired. This would be barred by the Statute of Frauds, Sec. 4, Art. 3995, V.C.S.
Appellant’s conduct was at variance with his contentions herein. He drilled the first two wells on the premises as an employee of Stanfield and Hudson. The purpose of this drilling' was not to discharge any of his obligations under the lease, but to discharge and preserve Stanfield’s or Stanfield and Hudson’s rights under the lease. However, this properly goes to the weight of his testimony, rather than to the merits of the case.
It is ordered that appellant’s motion for a rehearing be in all things overruled.