Wilfred Brown, Guardian, and another, v. G. W. Guthrie, 27 Tex. 610

Moore, J. This was a suit by the appellee, Guthrie, to engraft by parol testimony an implied trust upon a deed for land. The facts out of which the trust is alleged to grow occurred, and the deed under which it is claimed was executed, more than twelve years before the institution of this suit.

The plaintiff below, Guthrie, alleges in his petition that the land in question was won by himself and one Anthony Brown from Jesse Robinson, on a horse race run on the 1st of January, 1847, and that a deed was executed on said day to Brown for the entire tract of land, although the plaintiff was equally interested with him in the winnings on the race. On the trial several witnesses testified that they had heard Brown say before and after the race that the plaintiff was interested in the race with him, and entitled to one-half the land won on it.

It was also proved that the horse run by Brown was kept and trained by Guthrie. Brown died in 1848, administration was shortly afterwards had upon his estate, and it was finally settled, and the administrator discharged in 1854. The land was inventoried as a part of Brown's estate, and the taxes upon it were paid by his administrator, and, since the final settlement of the estate, by the guardians of his children.

No claim was made by Guthrie for the land against the estate of Brown during the pendency of the administration, nor, as far as is shown by the record, was his claim ever made known or asserted prior to the institution of this suit. Nor was there any effort to explain or account for the long delay in its prosecution, or to show why the deed in the first instance was made in the name of Brown.

Under these circumstances, the court below should have held the alleged trust to be a stale demand, and the mere parol proof of Brown’s admissions of the trust (without explanation by Guthrie of his delay in its assertion) insufficient to sustain the verdict, or authorize a decree, and should have set the verdict aside and granted a new trial. The judgment is reversed and the cause remanded. - Reversed and remanded.