The court instructed the jury that the burden of proof was upon the plaintiffs, and as follows: "If you believe by apreponderance of proof that in the purchase of the land in controversy from Ward B. Blanchard and Ysabel Blanchard, in the year 1882, a tract of 320 acres of land owned by plaintiff Kate Hopf (then Kate Sydnor) was deeded to said Ward B. and Ysabel Blanchard as a part consideration for the payment of said land in controversy; that it was agreed or understood by and between Kate Sydnor and said George Baylor and wife that said Kate Sydnor was to have an interest in said land in controversy; that said deed to said land from Ward B. and Ysabel Blanchard was made to defendant Sallie G. Baylor, and that by mistake or inadvertence the name of Kate Sydnor was omitted, then you will find a verdict for plaintiff for such interest in said land as you may believe the value of the 320 acres of land bore to the other part of the consideration paid for said land."
Appellants contend that this charge was incorrect, in that it authorized the jury to find for plaintiff on a mere "preponderance of proof," when in fact they ought to have been instructed that the trust relied on by plaintiff must be established with "clearness and certainty" to entitle her to a recovery.
Even if the object of this suit were to engraft a parol trust upon an absolute deed the charge contended for by appellants would not be correct. Justice Gaines, after reviewing our cases upon this point, in the case of Howard v. Zimpleman (unreported), says: "It is against the policy of the law that a written instrument should be shown by parol testimony to have an effect different from that which its terms import, except upon very strong proof; but we are of opinion that to tell a jury a parol trust must be proved with certainty is calculated to mislead. 'Certainty' means 'the absence of doubt,' and the effect of such an instruction is to tell the jury that it must be proved beyond any doubt. Such a quantum of proof is not required in any case." Then a rule is laid down in the opinion, which we think is both clear and safe, as follows: "In a case like the present it would be proper to instruct the jury as to the legal effect of the conveyance, and that the parties to it are presumed in the first place to have intended that it should have that effect, but that they should find that a trust was intended, provided the other evidence be sufficient to overcome that presumption and to reasonably satisfy them that such was in fact the intention."
We are not willing, however, to say that the case before us is an attempt to engraft a parol trust upon an absolute deed. The deed of *Page 642 Blanchard and wife to Mrs. Baylor recites that the consideration was paid by Baylor and wife and Kate Sydnor in money and certain lands; and taking this deed in connection with the deed executed by Baylor and wife and Kate Sydnor of the same date to the Blanchards, it is evident that Kate Sydnor contributed her 320 acres of land, valued at $1.50 per acre, to the purchase. These deeds were executed at the same time and were parts of the same transaction, and as between the parties at least must be construed together. By virtue of these facts as alleged in her petition she became the equitable owner of such part of the land as was paid for by her. Burns v. Ross,71 Tex. 519; 61 Id., 648. This right does not depend for its proof upon extraneous facts, but on the deeds themselves, is implied from them as a resulting trust, and, if the question were involved, is so clearly recognized in the Blanchard deed alone as put purchasers from Mrs. Baylor upon inquiry. It may be true, as alleged by defendants, that Kate Sydnor put her land in with the intention to make her sister the sole owner on account of obligations for support and maintenance for years as alleged by defendants. But who had the affirmative of this issue? It was set up by defendants to defeat the equity of Mrs. Hopf. She had the power to so appropriate her land or to give it to her sister if she desired, but she was not required to prove that she did not so appropriate it. The relations of the parties would not give rise to a presumption that she intended it as a gift.
The burden of proof was not upon her on this issue. There was no question made in the pleadings or the evidence but that her land was a part of the consideration for the Blanchard deed; but the question was, Was it intended as a gift or a payment to her sister or Colonel Baylor? If so, her equity was defeated.
It is true Mrs. Hopf alleged that her name was omitted in the deed through inadvertence or mistake, or some other cause to her unknown. This allegation would not require of her that strict proof that is necessary to establish a parol trust in land, because the trust is evidenced by the deed and it would be implied. If the value of her land does not appear from the deeds, the burden of proof would be upon her to show such value in order to show what part of the purchased estate would equitably belong to her; but this burden would only be such as is ordinarily assumed by plaintiff in making his case. The burden was upon her, as upon every plaintiff, to make out her case, to establish her equitable claim to the land and the amount as alleged, but not as a parol trust.
As to the assignment of error that she recovered more land than was warranted by the testimony, we must say that we can not reverse upon that ground for obvious reasons. There was evidence in the deeds when read together that her land was valued at $1.50 per acre and was estimated *Page 643 at $480, the amount she alleged it to be worth, and she testified that such was the fact. Other testimony was to the effect that her land was only valued at 50 cents per acre, and that all the land used in the purchase was valued at only 50 cents per acre. We are not called on to reconcile the conflict in the testimony; the verdict of the jury settles that question, estimating her interest in the land at one-fifth. This is somewhat less than the interest claimed in the petition, and less than the interest that may be derived from an inspection of the deeds. If her 320 acres of land went into the purchase at $1.50 per acre, or $480, and the entire price was $1690, as stated in the Blanchard deed, and she was entitled to recover, her interest would be 48/169, between one-third and one-fourth, or more properly 28/100 of the whole.
The objection to the verdict that the evidence was to the effect that Mrs. Hopf voluntarily contributed her land in the purchase of the Blanchard place in order to secure a home for her sister Mrs. Baylor, or because of obligations to her, and intended at the time that Mrs. Baylor should be the sole owner, need not be further considered than to say that the evidence was conflicting, and that it is not the province of the appellate court to set aside the verdict. There was ample evidence in favor of Mrs. Hopf to establish her claim to the land as awarded by the jury, as there was to have sustained a verdict for defendants; more witnesses testifying for the defendants than for the plaintiff. In such case the verdict must stand so far as we have power over it.
The court instructed the jury substantially that if they should find for plaintiff they would also find for her the value of the use and occupation of her part of the premises from the time of plaintiff's entry. Appellants contend that the charge is erroneous, because under the facts it does not present the correct rule, and it authorized the jury to find a greater sum and for a longer period than the facts warranted. This assignment is well taken. The jury awarded $180 as rents — that is, one-fifth of $900. It was proved that the rental value of the premises was $100 per annum for the first three years of occupancy by Baylor, and $200 per annum for the rest of the time. The jury allowed rent for six years from September 7, 1882, the date of the entry and the date of the deed, to January, 1889, the time of the trial.
The evidence of Mrs. Hopf was that she aided in buying the property in order that she might have a home for herself; that she needed a home as well as her sister, and it was in proof that she did live with Baylor and wife on the place up to the time of her marriage. She says she thought her name was in the deed as a grantee until after her marriage. The jury under the direction of the court allowed her rent for the three years she occupied the premises, as well as for the three years following her marriage. The charge was not correct. It directed the jury to allow her rent for a longer time than the jury would have done, or rather might have done under the facts. If the Baylors had and *Page 644 asserted the exclusive use of the property before Kate's marriage, and she was acting as a servant of the family, and not sharing in the occupancy as a tenant in common, she would be entitled to rent during the continuance of such condition of things even before her marriage. But if she occupied the premises before her marriage as a tenant in common with Baylor and wife, she could not recover rent during such time. There were facts in proof on this subject, and they should have been submitted to the jury.
Because of the error in the charge, we conclude the judgment should be reversed and the cause remanded.
Reversed and remanded.
Adopted October 13, 1891.