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Lathrop et al. vs. White, guardian, et al.

must have happened long prior to the sale which she made to Young. It was an admission against her interest at the time it was made; and we think it was properly admitted.

2. Numerous exceptions were taken to the charge of the court. While the charge of the court is undoubtedly subject to some criticism and is not entirely free from error, yet taking the whole charge together, we think it contained no material errors affecting the result in this case. Taking the whole case as made by the evi. dence, we think the jury arrived at a right conclusion when they found for the plaintiffs two-thirds interest in the property in dispute.

Judgment affirmed.

LATHROP et al. vs. WHITE, guardian, et al.

1. A deed, on January 2, 1867, by George H. White to William T.

White, as trustee for the wife of said William, no other cestui que trust being mentioned therein, was the same in legal effect as if it had been made directly to the wife. The legal title was in the wife, and she coul!, after the making of said deed, have sold the

land and made a good title thereto, without leave of court. 2. The act allowing children of a married woman, who had a separate

estate, to share with their father upon her death, not being passed until 1871, when Mrs. White died in 1868 or 1869, the title to the property in question descended directly to her husband, said Wm. T., regardless of the fact that she then had a child living, who was

plaintiff in the present case in the court below. (a) This being true, the said White inherited two unpaid notes given

by one Boon for the purchase money of the land, and had the right to deposit them with Lathrop & Co. as collateral security for a debt

due them by said White. (6) If Mrs White were dead when the land was sold to Boon, then

White, her husband, having inherited it, certainly had the right to sell it. If she were living, and White sold it as trustee for her, and

afterwards acquired title, his title went to Boon. 3. Therefore the child of said Wm. T. White and wife would not now.

have any right to complain of the sale to Boon or the use made by her father of the Boon notes, whether there were usury in the debt of White to Lathrop & Co.or not. Lathrop & Co. had a right to sue the

Lathrop et al. vs. White, guardian, et al.

Boon notes, deposited with them as collateral, to judgment, (White having died leaving his debt to them unpaid,) and to make any settlement with Boon in relation thereto which they and Boon saw proper to make; hence they had the right to enter the judgment satisfied, take a transfer of the bond for titles given by White to Boon, and, the balance due of the purchase money being thus paid by Boon, to take and hold possession of the land surrendered to

them by Boon. 4. The record of the deed from Geo. H. to Wm. T. White, trustee,

could not of itself be notice that the property conveyed in said deed was bought with the proceeds of other property devised by the will of the father of Mrs. White in trust for her use during her life, and at her death for her children, the deed itself making no reference to such will or such property, nor mentioned any cestui que trust other than Mrs. White. There is nothing in the items of the will referred to, or in an application made to have Wm. T. appointed trustee of the property devised instead of another who declined to act, to show what was the character of the property devised; nor was there anything in an application made by White, as trustee under the deed of eorge H., to the chancellor for leave to sell the land conveyed in such deed, to show that this last named land was bought with the proceeds of the property devised. So that no constructive notice appears in the case, and the evidence is quite weak

as to whether in point of fact the land was so purchased. 5. But it is not contended that Boon had any actual notice of the

alleged use of the property devised or its proceeds, and the papers of record being of themselves not notice, he certainly was an innocent purchaser. This being so, as Lathrop & Co. hold under him, it matters not whether they had notice or not. If Boon's title were

good, they got a good title from him. 6. Whether, as is contended, Lathrop & Co. did not go into possession

of the land when Brown gave it up, but surrendered it to George II. White, agreeing that White should take the land and rent it and pay the debt of William T., and when that was done the land should belong to the child of said William T., was a question for the jury, which does not seem to have been submitted to them by the court. If the agreement were made and the debt paid within the time agreed, then the child would be entitled to the land ; otherwise not.

May 28, 1889.

Husband and wife. Trusts. Collateral security. Notice. Before Judge GUSTIN. Houston superior court. October term, 1887.

In 1862, the grandfather of Mrs. Adkisson, by his

Lathrop et al. vs. White, guardian, et al.

will gave, among other devises, to one Woodward, certain property,

“in trust for the sole and separate use and benefit of my daughter, Leah E. Jones, for and during her natural life, and not to be subject to any of the claims, debts, contracts or liabilities of any husband she may hereafter marry, and at her death to go to any child or children she may have, to be distributed among them, if more than one, equally, share and share alike. And should my said daughter die, either before or after marriage, leaving no child or children, then it is my will and desire that all the property, hereinbefore bequeathed in this item of my will, shall be equally divided between the children of my three brothers, Timothy, John and Barden, if living, or among their representatives if dead."

The other facts are stated in the decision.

W. L. GRICE and W.S. WALLACE, for plaintiffs in error.

HARDEMAN & DAVIS, contra.

SIMMONS, Justice.

George H. White, as guardian of Leah E. Adkisson, brought his complaint for land against Margaret A. Lathrop et al., in Houston superior court. He claimed title to the land as guardian, under and by virtue of a deed made by George H. White, in whom was the legal title, to William T. White, as trustee for the latter's wife. He alleged that said trustee purchased the lands with the proceeds of a trust estate which he held for the petitioner's ward's mother, in trust to hold the same for her use during life, and at her death for her children. He further alleged that said trustee went immediately into possession of the land under the deed, and so remained until 1871, when he removed beyond the limits of the State, and left tenants in possession, who so remained until after his death in 1872, leaving petitioner's ward the sole heir; that the wife of the trustee had died before the death of the trustee in 1868 or 1869. Attached to the declaration was an abstract of title. The abstract consisted of a deed from Whitehead to McLane,

Lathrop et al. rs. White, guardian, et a'.

dated January, 1842; a deed from McLane to John G. · White, November, 1849; a deed from John G. White to George H. White, September, 1866 ; and a deed from George H. White to William T. White, trustee, January 2d, 1867. This latter deed recited that it was an indenture made between George H. White, of the one part, and William T. White, trustee for his wife, Leah E. White, of the other part, “ to have and to hold said land to the only proper use, benefit and behoof of him, the said William T. White, trustee as aforesaid, his heirs, executors, etc., in fee simple.” The warranty is to William T. White, trustee for his wife aforesaid, his heirs, etc. It appears from the record in the case that, in October, 1867, White, the trustee, and his wife made application to the chancellor for leave to sell said land, stating that White held said land as trustee; and gave certain reasons for the sale thereof. On October 10th, 1867, the chancellor passed an order in chambers, allowing White to sell the land and reinvest the proceeds thereof. All these proceedings were placed upon the records of Houston superior court. In this petition and order no reference whatever was made to any

child or remainderman. Soon after this order for sale was granted, White sold the land to one Boon, for $2,000, and took Boon's notes for the purchase money, payable in four equal instalments, due at one, two, three and four years. Boon took White's bond for titles to the land, and went into possession in 1868. Boon paid two notes when they fell due, but was unable to pay the other two. In 1868 or 1869, Mrs. White, the cestui que trust, died. After her death, White became indebted to Lathrop & Co., and gave his individual note to them for $912.49, dated January 12th, 1871. After giving this note to Lathrop & Co., White put into their hands as collateral security the two unpaid notes of Boon, amounting to $1,000, which had been given to him as trustee,

Lathrop et al. ts. White, guardian, et al.

for the land. After this transaction, White moved to the State of Louisiana, and died there in 1872. Lathrop & Co. sued these notes to judgment at the May term, 1874, and were pressing Boon for the money. At this point there was a settlement or an arrangement made between Lathrop & Co. and Boon and Geo. II. White, the plaintiff in the court below, whereby Boon transferred in writing the bond for titles which he held from White, the trustee, to Lathrop & Co., and gave up the possession of the land. Lathrop & Co. had the execution against Boon marked satisfied in full," and filed in the clerk's office the $912 note given by White to them. There was a conflict in the testimony at this point, White contending that there was a parol agreement between him and Warren that Lathrop & Co. should keep the land until the rents were sufficient to pay the debts due them by William T. White, and then the place should be surrendered up for the benefit of the child; while Warren denied this, and insisted that the trade was ditional, that he gave White twelve months in which to redeem the land, and White failed to redeem it. Much testimony was introduced on this point.

It seems that this point in the case was not submitted by the court to the jury. The firm of Lathrop & Co. was dissolved at the death of Lathrop, and on the distribution of assets this land fell to the wife of Lathrop, and a deed to it was made to her by the surviving partner and the other heirs of Lathrop. Upon the trial of the case, under the charge of the court, the jury returned a verdict in favor of the plaintiff, with mesne profits, and the defendant made a motion for a new trial, which was overruled, and she excepted.

It seems to us that this case was tried in the court below upon a wrong theory; and it is, therefore, unnecessary to review the many grounds of error set out in the motion for a new trial. From the evidence disclosed in

uncon

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