McKamey v. Thorp

Citations

• 61 Tex. 648
• 1884 Tex. LEXIS 167

Syllabus

<p>1. Pleading in trespass to try title.— Evidence in defendant’s behalf of fraud in the acquisition of title by plaintiff, or that his title had failed on account of a sale made to an innocent purchaser without notice, may be admitted in trespass to try title under the plea of not guilty; under that plea any other defense that will prevent the plaintiff's recovery may be heard, except that based on the statute of limitations, which must be specially pleaded.</p> <p>3. Resulting trusts — Bona fide purchasf.rs.— A conveyance of real estate was made by a third party to the wife, which was paid for by the husband, in pursuance of an agreement between them, under which the husband had used the separate funds of the wife, to repay which the deed was made. Held:</p> <p>(1) That if the money, while in the husband’s hands, remained the property of the wife, the creditors of the husband had no claim on it, and it would follow that its investment in land, title to which was made in the wife’s name, during coverture, could not be a fraud on their rights.</p> <p>(3) When such a deed failed to recite that the purchase money was the separate property of the wife, or that the conveyance was for her sole and separate benefit, though the deed was in her name, the legal title vested in the community of herself and husband, but she remained the equitable owner, a resulting trust being created by the use of her money in the purchase of the land.</p> <p>(3) Such a resulting trust is not within the registration laws, for the claimant of the equity cannot spread the evidence of it on the record. Under the operation of the registration laws, when an execution lien attaches by levy, without notice of an unrecorded conveyance previously made, the purchaser acquires title as against such former purchaser or creditor, though he may have had notice afterwards at the time of his purchase at execution sale. Citing Parker v. Coop, 60 Tex., 111.</p> <p>(4) But a creditor, claiming a mere statutory