B. F. Stafford v. R. E. Stafford, 96 Tex. 106

BROWN, Associate Justice. Court of Civil Appeals for the First District has certified to this court the following statement and questions: “This suit was brought by B. F. Stafford for the recovery of an undivided interest in certain lands and for partition, on allegations which for the purposes of this certificate may be stated in substance as follows, “He averred that on and prior to the 3d day of December, 1889, he and R. E. Stafford, the husband of appellee, were the joint and equal owners of certain lands described in the petition. That one Carlton, havingxa judgment against appellant for $968.03, had his (appellant’

s) interest in the lands seized under execution and advertised to be sold by the sheriff on the 3d day of December, 1889. That prior to the sale he had arranged with R. E. Stafford to lend him the money to pay off the judgment and prevent the sale, taking a mortgage on the land as security, but the latter failed to. draw up the papers, so on the day of sale it was agreed that R. E. Stafford should attend the sale, buy in the land for appellant, paying for it with the money agreed to be loaned, taking the deed from the sheriff in his (R. E. Stafford’

s) own name, but simply for the purpose of a mortgage to secure the loan. That in accordance with this agreement R. E. Stafford attended the. sale, bid in the property, taking the deed to himself, and reported to appellant that he had bid in the property for $1000, which would slightly exceed the judgment, and that appellant should get the overplus from the sheriff, so that the debt would be an even $1000, which could be repaid when they had a settlement of their mutual accounts growing out of a course of dealing between them. That on the 7th of July, 1890, and before such settlement was had, E. E.

Stafford died, leaving appellee his sole devisee. _ That suit by appellant became necessary to compel a settlement of the mutual accounts between him and his deceased brother, which suit was filed on the 3d day of March, 1894, against his widow, the appellee, and settlement was finally had by compromise in 1899. This suit had no reference to appellant’s claim to the land. That during his life E. E. Stafford had set up no claim to the land, but at all times admitted appellant’s title, and that appellee never set up any claim to the land until about three years before the filing of this suit.

It was further alleged by appellant that the land in question had been purchased by him and his brother from the State and that certain payments of purchase money had been made by his deceased brother and by the appellee ■ after his death, on the joint account of himself and them, and he tenders all he may owe of such payments, as well as the amount of the loan and interest, and prays for judgment for his interest in the land and for partition. “By supplemental petition he alleged that appellee had sold a part of the lands at great profit and he prayed to be permitted to share therein, and that his share be offset so far as it would go against what he might be found to owe for -purchase money paid on his account.

There was no allegation that appellee had knowledge at the time of her husband’s death or afterwards that the sheriff’s deed was by parol agreement to operate as a mortgage for the security of the loan, or that the deed was otherwise than an absolute conveyance. “To these pleadings appellee specially excepted on the ground that they showed on their face that appellant’s right to have the absolute deed of the sheriff declared a mortgage was barred by the statute of limitation of four years. “The trial court sustained the exception and B. F.

Stafford, refusing to amend, has appealed. “We held that the trial court erred in sustaining the exception; that the facts alleged constituted a mortgage by reason of the parol agreement, and that neither the statue of limitaions of four years nor stale demand applied. “First Question. Did we err in so holding? “Second Question.

If the facts alleged constituted a trust and not a mortgage, would the mere absence of knowledge on the part of the devisee that the deed to her deceased husband was otherwise than an absolute conveyance set the statute in motion?” In answer to the questions propounded, we reply, that the statute of limitation of four years does not apply to the facts set out in the certificate. The question of stale demand was not raised by the exception, and is therefore not before us for decision.

Article 3358 is in this language: “Every action other than for the recovery of real estate, for which ho limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued, and not afterward.” The plaintiff's petition set up the facts upon which, the recovery was based and concluded with a prayer, “for judgment for his interest in the land and for partition.” The action was brought for the recovery of real estate, and therefore does not come within the terms of

article 3358. It is not necessary for us to determine whether the facts constitute a mortgage or a trust, because if it be a mortgage, the title was in B. E. Stafford, and upon that he could maintain this action. If it were held that the transaction constituted a trust in R. E. Stafford, then B. E. Stafford was the beneficiary of that trust and held the equitable title to the land which upon the tender of the sum due became absolute, and he could institute this action to recover the land without previous suit to declare the existence of the trust. Easterling v. Blythe, 7 Texas 210; Miller v.

Alexander, 8 Texas 36; Secrest v. Jones, 21 Texas, 121; Martin v. Parker, 26 Texas, 264; Gibbons v. Bell, 45 Texas, 423; Burdett v. Haley, 51 Texas, 540. In Secrest v. Jones, the vendor had given a bond for title to the land in question and the purchase money had been paid. The vendor refused to convey the land and the vendee brought an action of trespass to try title, and it was held that upon the payment of the purchase money the title became absolute in the vendee. There can be no question that the equitable title to this land was in B. F.

Stafford under the allegation of his petition, and he could maintain such action for the recovery of the land as might have been maintained if he had the complete legal and equitable title. The fact that he set out the facts which constituted his cause of action does not change the character of the suit; it is as much an action for the recovery of real estate as if it had been in the form of trespass to try title.