J. W. Lott and others v. J. R. Bertrand and others, 26 Tex. 654

Moore, J. This case has been argued here, and was by the charge of the judge made to turn in the court below solely upon the effect that the statute of frauds and fraudulent conveyances was supposed to have had upon the marriage contract under which the plaintiffs claimed as remainder-men, by reason of the failure to record it in'Washington county.

The plaintiffs insist that the contract was duly recorded in the then territory of Florida, shortly after its execution, and previous to the removal of the trust property to this State, and that it was not necessary that it should be again recorded here to secure their title; but this being fixed and completely vested in them by the record in Florida, the contract followed and acted upon the property here for their protection. And this doctrine they contend has been recognized and maintained by this court in the cases of Parks v. Willard, 1 Tex., 350; Edrington v. Mayfield, 5 Tex., 363; and Gamble v.

Dabney, 20 Tex., 69. But if the record in Florida is not sufficient, they say that, as the defendants had notice of the trust, the record of the contract was, as to them, immaterial. On the other hand, the defendants with equal zeal maintain that these questions have been settled in their favor by the decision of this court in the case of Grumbles v. Sneed, 22 Tex., 565.

A reference to the authorities to which these cases refer, or expressions in some of them which were not called for by the facts, might to some extent present a seeming conflict between them; but we think they can be easily and readily reconciled with each other. It is not important, how- • ever, that we should advert more particularly to them, as we do not regard them as having any immediate bearing upon this case as it is now presented before us. The property about which this suit is prosecuted is real estate. It does not, therefore, come within the provisions of the last clause of the second

section of the statute of frauds and fraudulent conveyances. If the plaintiffs were seeking to enforce their rights as remainder-men in any goods or chattels, the possession whereof had remained in ■ another for the space of three years, without demand made and pursued by due process of law, it would be important to enquire whether the record of the marriage contract in Florida would be sufficient to protect their title here; and if not, it might no doubt with great force be urged that, under the authority of Grumbles v. Sneed, notice of the trust would be ineffectual against the defendants.

But if plaintiffs can recover, it is upon the ground that there is a resulting trust in their favor with reference to .the property in this suit, by reason of its having been acquired with the property in which they had a remainder. So far as the parties claiming under the marriage contract are concerned as between themselves, it is immaterial whether it is recorded or not. Among them it is valid and binding. It is only creditors and purchasers from the party in possession who can insist upon its invalidity.

Although, then, the contract was not recorded at the time the property embraced in it, or the proceeds of it, was converted into the property now in suit, (if that has been done,) as against the parties to the contract, the plaintiffs were entitled to claim by its terms, and as a resulting trust, the same interest in this property that they had in that originally embraced in the contract. The question then arises, whether the remainder-men can assert this right against the creditors or purchasers from the owner of the life estate, who have notice of their title.

According to the well established and recognized rules of equity jurisprudence, we think they may. If it were goods and chattels into which the original property in the trust of like description had been converted, then, as the policy of the law, as is held in Grumbles v. Sneed, requires that proof of a title in remainder shall be made only by will or deed, in writing, duly recorded, no other character of proof would be sufficient. But this is a statutory rule prescribed with reference to a title in remainder' in this character of property.

In regard to land, as that is not embraced' in this clause of the statute, the court will require only such evidence as is necessary by law to establish a title to it. And for this purpose, it will not be questioned that a deed duly executedy. though not recorded, is sufficient as between the parties and purchasers with notice; and that the purchaser of a trust estate with notice is chargeable with the trust. We think, therefore, the charge of the court with reference to the necessity for the record of the marriage contract in Washington county, was incorrect and calculated to mislead the jury.

Whether the defendants, who claim as purchasers and creditors, had any notice of plaintiffs’ claim, and at what time they received it, are questions of fact, the consideration of which was withdrawn from the jury, by the charges. In its present attitude before us, we do not regard it as proper that we should express any opinion as to the respective equities of" the parties under any phase which the case may assume. Mbr will we, in the absence of argument, consider any of the questions, presented by the defendants? bills of exceptions to the various, rulings of the court.

Several of these, especially with reference to the admissibility of testimony, present points that seem to us. worthy of serious consideration; and as they may, and some of them probably will, arise again in the future progress of the case;, we should, if they had received the attention of counsel, have felt called upon to have expressed an opinion upon them. But as they have not, and are not necessary to a decision of the case as now before us, we decline doing so. The judgment is reversed and the cause remanded. Reversed and remanded.