On Motion for Rehearing. As suggested in the original opinion, the findings of the jury in answer to the special issues submitted to them are not inconsistent, especially so when considered in the light of the evidence. The facts in this case show that P. C. Bell, the son of appellant, was involved and, according to the testimony of his father, threatened with criminal prosecution. Appellant procured from his son, P. C. Bell, a transfer of 735 acres of land to himself, practically all of the personal property, notes, and accounts and vendors' lien notes against what is known as the Curtis land, for the sum of $3,000, which property was to be used in paying the son's indebtedness. Swim testified that he was informed by the parties that his son's debt to him was among those to be paid, and that the appellant personally gave him his word of honor the debt would be paid, and that he would pay it. It appears that Curtis did not pay the notes against the land, and, after being sued thereon, he, Curtis, by consent of the son, P. C. Bell, conveyed the land to H. A. Bell, February 6, 1911. It cannot well be disputed that by that transaction on that date the land was thereafter, until the settlement, held by H. A. Bell in trust to pay the debts under the terms of the original trust, and that the land occupied the position of the $3,000 vendors' lien notes. Thereafter, on the 9th of February, 1911, the father and son had a settlement. At this settlement the father deeded to the son's wife 535 acres of the land theretofore conveyed to him in trust, and it was agreed between them that the father should retain 400 acres of the land then owned by the son — 200 acres of which was the Curtis tract. The evidence tends to show and warrants the finding that the 200 acres out of the 400 acres, which was sold to *Page 855 Tombs, which sale on the date of the settlement was then being negotiated, and by which it was understood that appellant was to receive $6,000 net to him on this Tombs tract, that this sum was to be paid on debts, or to pay H. A. Bell for the debts that he had theretofore paid or become responsible for. The Swim note was not included in this Tombs sale. The consideration for the 200 acres of land which Tombs purchased was the payment of the debts, except the Swim debt, paid and to be paid by H. A. Bell. The 200-acre Curtis tract H. A. Bell agreed to keep as his property, and as consideration therefor agreed to pay the Swim debt. After this settlement and the deed from P. C. Bell and wife to H. A. Bell to the Tombs tract of land, appellant then deeded to Tombs that tract, receiving net thereon to him $6,000, which the evidence indicates he applied on the debts that he had theretofore assumed or paid, and to reimburse himself for whatever indebtedness his son was due him. The 200-acre Curtis tract appellant offered to Swim if he would pay a difference: One of his propositions was $800, another $500, and another $200. The propositions Swim testified he was unable to accept, for the reason that he was involved in other indebtedness, and was unable to pay that sum, whereupon Bell sold or exchanged the Curtis land to one Reynolds, and in that trade procured from Reynolds, as consideration for the Curtis land, lands in Culberson county. Appellant caused Reynolds to execute the deed to two other of his boys to this land.
The second question answered by the jury clearly responds to the facts. That is on February 9, 1911, the Curtis land was kept by appellant for the purpose of using it, or the proceeds, in paying the Swim debt. That was what he said he would do if Tombs' testimony is true, as well as other facts and circumstances in this case. The jury, on that issue, did not find he then kept the land in trust, as he had theretofore held it, for the purpose of paying the debt. Their first finding includes that purpose or proposition; that is, on February 6, 1911, the land was deeded in trust for the purpose of paying the debts of P. C. Bell, but on February 9, 1911, appellant kept it for the purpose of paying Swim's debt, in accordance with his agreement; and by the first special issue they found the payment of the Swim debt was the consideration for the land, and to the second issue they answered that it was the understanding that he should pay the Swim debt. The payment of the Swim debt was his "purpose," the "consideration" and "understanding" for keeping the 200-acre Curtis tract. These things are not inconsistent, but necessary to make a contract for the payment of the debt. The title by this agreed settlement was vested in H. A. Bell to the 200-acre tract. He had the right to sell and appropriate the proceeds, which he did by procuring other land and procuring a deed made to two of his boys. What was the consideration for vesting the title in H. A. Bell? The jury say it was the payment of the Swim debt. What was his purpose in procuring the title to himself? The jury say to pay the Swim debt, either with the land or out of its proceeds. What was the understanding, that is, between P. C. and H. A. Bell, in appellant keeping the land? The jury answered to pay the Swim debt. There cannot necessarily be any inconsistency in these findings.
On February 6, 1911, appellant had paid out sums of money for his son to prevent prosecution and to prevent the sale of the property. He had up to that date notes of Curtis to the amount of $3,000 to secure him in these sums, as well as Swim's note. He took the 200 acres in place of the notes, and thereby held it subject to the same trust the notes were held under. This was the finding of the jury in answer to the first issue. After that, on February 9, 1911, he and his son agreed to change the trust relationship. They, in other words, repudiated the trust for the first time. The father released 535 acres of land from the trust and became thereafter the payor or bound for the debts sought to be secured thereby. He did this by having his son convey to him the 200 acres which he afterwards conveyed to Tombs. This land he then knew would net him $6,000 and would pay all the debts except Swim's. The Curtis land, 200 acres, was sufficient to pay the Swim debt and something over, as he then evidently thought, for he demanded from Swim a difference between the debt and the land $800. This Swim says he was unable to pay, but offered to assume the mortgage on the land and give up his note, but appellant refused that, and traded it for other land. Appellant, simply as a part of the consideration paid for this land, assumed to pay the Swim debt, and by this assumption, on February 9, 1911, made it his debt and his promise to pay for a valuable consideration. On that day he turned a trust into an absolute conveyance for a valuable consideration; that is, the payment of a valid debt, which as trustee he had theretofore agreed to pay out of the funds in his hands, a part of which funds he then discharged from the trust by his agreement and a reconveyance to the wife of his son. The jury, in accordance with this situation, answered the two special issues, which do not conflict with the findings that when the Curtis deed was made it was in trust to pay the debts. No one had a right to complain at this settlement but cestui que trust, and, upon learning that appellant had assumed the payment of his note, he accepted the changed relation and accepted appellant as the principal obligor on the note. The only question in this case, and really the *Page 856 only disputed fact, was whether, in the agreement and settlement of February 9, 1911, the consideration for the 200-acre Curtis tract was the payment of appellee Swim's note, or whether the consideration was to pay a balance claimed by appellant to be due him by his son after applying $6,000 and the proceeds from personal property and the rents collected by appellant while holding the property in trust. On this issue the jury found against appellant and we believe upon ample testimony.
It is true while testifying upon this trial appellant claimed his son owed him a balance of some $1,573, then due. The evidence, however, shows that on two different occasions after this settlement the appellant, by affidavit, stated that his son's indebtedness to him was only $6,000 and that this was paid by the Tombs tract of land. He made this to enable his son to procure a loan on the 535 acres of land. If the indebtedness to appellant had not been paid, then there was an equitable lien on the land, created by virtue of the trust theretofore executed and existing. On the date of the settlement he also gave his son a receipt, acknowledging the receipt of $10, which when settled, discharged all obligations by the son to his father. After this he sought to sell the land to Swim for the debt and $800 difference, showing that he considered that he owed the debt to Swim. That appellant claimed the absolute title to this 200 acres of land after the settlement is beyond question. He sold it as his and deeded it as his. His son, as far as this record shows, never claimed an interest in the land after the settlement; and, as above stated, there is no question on that point in this record. The only question is, What was the consideration moving from appellant to his son for the land? And the jury have settled that beyond cavil by finding that the consideration was the payment of the Swim debt.
One of the appellant's contentions is that the cause of action was barred by the two-year statute of limitations. The action was brought and suit instituted and filed originally October 26, 1912, against P. C. Bell and H. A. Bell, seeking a recovery on the note executed by P. C. Bell, and in the original petition it is averred that H. A. Bell, for a valuable consideration, in February, 1911, assumed the payment of the note and became liable therefor. After filing this suit P. C. Bell died, and thereupon an amendment was filed August 16, 1913, making his wife and children parties thereto. In this amendment, the assumption of the debt is not clearly alleged. The plea was defective in that particular, but clearly there was no abandonment of the original cause of action against H. A. Bell and his assumption of the debt. On September 19, 1913, an amendment was filed, upon which the parties went to trial. In this petition an entire history of the transaction, from Swim's standpoint, was given, and a clear allegation is made that on the 9th day of February, 1911, H. A. Bell assumed to pay the note in consideration for the Curtis 200-acre tract of land. So that the two years have not expired between the 9th day of February, 1911, and October 26, 1912, when the suit was filed. The note fell due October 29, 1909, and four years from that date had not lapsed when the suit was filed. The note was not barred. Neither was the assumption of its payment by H. A. Bell barred when the suit was filed October, 26, 1912. The allegations of the several amendments do not materially differ in substance. The trial court could not say, and we cannot, in any of the pleadings that appellee abandoned the assumption on the part of Bell to pay the note; but it was averred and claimed in each and all as stated, and is so as to the first amendment. The plea was defective and required amendment, but that was not an abandonment of the cause of action on that ground. The discussion and proposition asserted in the original opinion on the statute of limitation we regard as sound and applicable to the particular facts of this case. Appellant took over all the property of his son, holding it in trust to pay his debts. Appellant, without consulting the beneficiaries in the trust, reconveyed part of this property, and, if Tombs' testimony is true, insisted that he should have the Curtis land to pay the Swim note, and upon that consideration alone procured the title. He had, in so far as Swim was concerned, without Swim's consent, repudiated the trust and induced his son and wife to give him the absolute title to the land in consideration that he pay the note. Afterwards he denied to Swim his liability, either as trustee or individually to Swim. After his conduct and representations, to both Swim and his son, and thereby causing delay in the institution of the suit, he should not be allowed to interpose the statute of limitations, because, first, he was trustee and held himself out to Swim and others as such. Thereafter, to get the title in his own name, he agreed with his son to pay the debt without notifying Swim to that effect, but afterwards denying all liability, either as trustee or as an individual. In order to defeat the statute of limitations if necessary, equity will fasten on him the character of trustee, and require him to comply with his agreement. The testimony of Swim, to the effect that appellant had verbally promised Swim in 1909 and subsequently to pay the note, giving his word of honor to do so, after stating he had in his hands his son's property for that purpose, we think was clearly admissible. It was part of this continuous transaction. It showed the relation of the parties, and a jury could not well have understood the case without it. It was material and relevant on the *Page 857 question whether he was trustee for the purpose of paying the note sued on; it was also a circumstance showing why he assumed the payment of the note. Swim, by virtue of the trust, had the right as a lienholder in all the property turned over to appellant by his son. The evidence in this case indicates that appellant so understood, as is evidenced by his subsequent affidavits, in order that a mortgage could be given on the 535 acres of land reconveyed. He admits that the affidavit was made to release the land from the debts for which the trust was given to pay. He must have known he could not release the 535 acres from the lien without in some way satisfying the note in suit. Hence his statements to Swim were potent circumstances showing why, and the consideration for becoming personally responsible for the payment of the note, and his reasons therefor. The writer hereof has not the slightest hesitancy in holding this testimony material, relevant, and pertinent to the issues presented in this case.
It is contended that the court erred in permitting paragraphs of the petition to which exceptions had been sustained read to the jury. There could have been no injury to appellant, such as will require a reversal in permitting the petition so to be read. If the matter was so interwoven with other matters as to require the reading of the entire pleading, it should have been permitted, especially so in the absence of a requirement of an amendment or a repleader eliminating the objectionable matter. The gravamen of the exception to the pleading was that it sought a recovery on a verbal promise to pay the debt more than two years before instituting the suit. If a recovery could not be had on such promises as the trial court held, we think it not improper to allege all the facts which led up to the cause of action declared on and submitted to the jury by the court The explanation of the trial court to the bill of exception in this case clearly evidences the fact that such was the opinion of the trial judge. He held, as we gather from the bill of exception, that the promises first made as trustee by appellant would not constitute a cause of action against him personally, but did not hold that the facts stated therein were not proper to be alleged as part of the inducement to the cause of action thereinafter set up. We think, for the same reason given in sustaining the court in admitting the testimony of Swim as to the verbal promises, that the allegation giving the entire history and transaction of this case was not improper, but was altogether proper, and that no injury could have resulted to appellant thereby.
First, in answer to appellant's request for specific findings, we find the judgment is sustained upon the fact that for a valuable consideration, that is, the vesting of title in appellant in the 200 acres of land, appellant assumed to pay the debt of his son, P. C. Bell, to appellee; that appellee upon the finding of the jury was entitled to judgment for the full amount of the debt, interest, and attorney's fees; second, the jury having so found, the judgment should not have been rendered against appellant as trustee, but against him as the principal obligor on the debt such as was rendered by the trial court.
We believe that this case has been correctly disposed of, and the various assignments correctly overruled, and the motion for rehearing will therefore be overruled.
*Page 858HALL, J., not sitting.