210 S.W. 716
CHANDLER et ux. 
v. 
RILEY et al.
(No. 8092.)
Court of Civil Appeals of Texas. Dallas.
March 22, 1919.
Page 717
        Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
        Action by R. F. Chandler and wife against John Riley and others. Judgment of dismissal, and plaintiffs 
appeal. Reversed and remanded, with directions.
        R. L. Williford, of Fairfield, and Adams & Stennis, of Dallas, for appellants.
        A. B. Geppert, of Teague, and T. W. Young, of Crockett, for appellees.
        RASBURY, J.
        The appellants, R. F. Chandler and his wife, Mary, sued appellee John Riley, to cancel sheriff's deed 
to certain lands in Freestone county, claimed thereunder by appellee, and to invest them with title thereto 
and possession thereof. Tenants in possession were made parties to the suit for purposes unimportant to 
detail. The facts narrated in the petition, and upon which the prayer for the relief sought was predicated, 
are in substance these:
        March 26, 1915, in cause No. 6262 in the district court of McLennan county, Mary Young obtained 
judgment against appellants upon their promissory notes for $7,730 with foreclosure of lien upon 1,431 
acres of land in Freestone county, given as security for payment of said notes, with award of statutory 
order of sale, etc. July 1, 1915, in cause No. 5381 in the district court of Freestone county, John Riley, 
appellee, secured judgment against appellant R. F. Chandler upon debt, also secured by lien upon said 
1,431 acres of land above recited, subject to lien in favor of Mary Young, and in addition upon 216 acres 
of land, and was awarded statutory order of sale, with stay until September 1, 1915. Subsequently orders 
of sale were issued from both judgments, and the lands described were levied upon and posted for sale 
according to the respective decrees on December 7, 1915. In order that the lands ordered sold might sell 
to the greatest advantage, appellants, prior to the sale, caused said lands to be surveyed into 23 tracts of 
not less than 50 acres each by the county surveyor of Freestone
Page 718
county, who also prepared a plat thereof, together with field notes of each tract, and prior to said sale 
placed the same in the hands of the sheriff, with the request that the lands be sold in tracts according to 
said plat one at a time and in the order designated by appellants. A few minutes before the sale, and 
when appellant R. F. Chandler, appellee John Riley, Young, and others had gathered in attendance upon 
the sale, appellee Riley proposed that appellant Chandler withdraw his request for a sale of the lands in 
tracts of 50 acres each, and permit Riley to bid in all the lands without competition, on condition that 
appellee Riley would reconvey said lands to appellant upon payment within 30 days of the amount due 
under said judgments.
        Appellant accepted the offer, and withdrew his request and plat from the sheriff, and the 1,431 acres 
of land were sold in bulk by the sheriff to appellee Riley for $8,200, the total amount due under the Young 
judgment, whereas, it was worth $30,000, while 216 acres were sold to appellee Riley for $400 whereas it 
was worth $4,000 there being, as result of said agreement, no competition at said sale, and but for which 
a sufficient amount of money to pay off said debts would have been realized by the sale of 1,000 acres of 
said land. After the sale, upon the representation of appellee Riley that it was necessary that he have 
possession of the lands before the expiration of the 30 days agreed upon, appellants consented for him to 
take possession thereof. Before the 30 days expired it was further agreed between the parties that 
appellee Riley should possess, use, and rent the lands for the year 1916, and appropriate the use and 
rentals for that year in lieu of the interest on Riley's debt for said year 1917, on condition that appellants 
would repay the full amount of Riley's debt on or before March 6, 1916. On March 6, 1916, appellee Riley 
further extended the time in which his debt should be paid to March 20, 1916, in order to cure some slight 
defect in the title at the request of one who had promised a loan to appellants sufficient to liquidate all 
debts. On March 15, 1916, one day before the expiration of the last extension, appellants requested from 
appellee Riley a declaration in writing that he would reconvey said lands upon payment in full of the 
indebtedness. Riley declined to make such declaration, whereupon appellants announced they would be 
compelled to resort to court for protection, and whereupon appellee Riley declared no further time for 
redemption would be allowed.
        The lands in controversy were all the lands owned by appellants, and in order to raise money to pay 
appellee Riley's debt it was necessary to secure its payment by the usual lien thereon, and appellant did 
procure the promise of loans from several parties sufficient to pay appellee's debt in full before the time 
agreed upon expired, and said parties were ready, willing, and able to pay appellee said amount upon the 
transfer of said lands to appellant, or upon a written statement by Riley that he would do so. This appellee 
Riley refused to do, intending secretly at all times to retain the lands and defeat the efforts of appellant to 
redeem same. Appellee Riley discouraged prospective lenders, by untrue statements to the effect that 
appellants would never be able to repay any loan, and by disparaging the value of the lands, and did in 
such manner and methods prevent appellants, within the time agreed, from securing a loan from T. J. 
Cole in December, 1915, from Capt. Garrity in December, 1915, from C. Roe Hall in January, 1916, from 
the American National Insurance Company and others in February, 1916, and but for which the debt 
would have been paid and the land redeemed. Appellants offered to pay into court all moneys found to be 
due appellee Riley. Other facts on other and alternative issues were pleaded, but it is not, in the view we 
take of the case, necessary to recite same.
        Among other defenses urged by appellee Riley to appellants' suit was the general demurrer, which 
on call of the case was sustained, and, appellants declining to amend, judgment was entered against 
them, and for appellee for costs, from which action this appeal is taken, and error assigned by appellants, 
but which appellees contend cannot be considered, for the reason that the record discloses affirmatively a 
want of jurisdiction in this court to consider the appeal.
        The first point is that the judgment entry shown in the record was not approved by the district 
judge, and is hence one that cannot be reviewed by this court. The judgment copied in the transcript is 
the form that usually follows when the general demurrer is sustained and no amendment made. Following 
the judgment, and obviously a part of the form required by rule 48, district courts (142 S. W. xxi), to be 
prepared by counsel for the successful party are the words: "Approved. _____, Judge 77th Judicial 
District." The district judge's name does not appear in the blank left for that purpose. Upon that fact 
apparently appellees contend that this court is without jurisdiction. In our opinion the claim is without 
merit. By article 1694, Vernon's Sayles' Civil Statutes, it is provided that district clerk "shall enter all 
judgments of the court, under the direction of the judge." Such entry has reference, not to the judge's 
docket entry, but to the amplified decree, which goes upon the minutes. The article does not require that 
the judge shall indorse his approval in writing on the form of such amplified decree. It is only required to 
be entered under his direction, and clearly such direction may be oral, and when the transcript, made out
Page 719
by the clerk and certified by him as required by articles 2108 and 2114, is filed in this court, the 
presumption will be indulged that the clerk performed his duty and that the judgment was entered "under 
direction of the judge," in the absence of such attack on the verity of the record as is permitted by law.
        The claim is also made that the affidavit in lieu of appeal bond was never filed in the district court, 
and for that reason this court is without jurisdiction. In preparing and arranging the transcript, the clerk, 
instead of showing the time of filing instruments on the margin of the transcript sheets, indicated such 
dates at the end of each pleading contained in the transcript. The affidavit in lieu of appeal bond is the last 
paper or pleading shown in the transcript. The time it was filed does not appear immediately beneath the 
affidavit, as in case of other papers; that which does follow immediately being the judgment of the court 
that appellants were unable to pay costs, which was in turn followed by a file mark. Judgments are not 
filed. It is obvious, therefore, that the file mark has reference to the affidavit, and such file mark, showing 
that the affidavit was filed within the time required by law, did confer jurisdiction upon the court.
        It is also urged that we are without jurisdiction because motion for new trial was not filed. It has 
been held repeatedly that such motion is not necessary to confer jurisdiction on appeals from the action of 
the trial court in sustaining a general demurrer challenging the sufficiency of the cause of action alleged in 
the petition.
        It is also claimed that the record fails to show notice of appeal. The record does show such notice. 
We assume the contention is due to oversight.
        We will now consider appellants' assignments of error, the first of which challenges the action of the 
court in sustaining the general demurrer, the effect of which was to declare that the facts related disclosed 
no legal right in appellants to the relief sought. Appellants argue that the facts related disclose in equity a 
constructive trust for their benefit, which they were entitled to have enforced at the time suit was 
commenced, upon their offer to pay whatever money the court might adjudge was due appellee in equity. 
Constructive trusts, those arising by operation of law from deeds, contracts, acts, or conduct, and 
enforceable in equity, are, as said by the author presently referred to, "as numberless as the modes by 
which property may be obtained, through bad faith and unconscientious acts." Various facts have been 
held to constitute such a trust in as many cases. The underlying rule, however, is of greater importance 
than the cases:
        "In general, whenever the legal title to property, real or personal, has been obtained through actual 
fraud, misrepresentation, concealments, * * * taking advantage of one's * * * necessities, or through any 
other similar means or under any other similar circumstances, which renders it unconscientious for the 
holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust 
upon the property thus acquired in favor of one who is truly and equitably entitled to the same. * * *" 
Pom. Eq. Juris., vol. 3, § 1053.
        A common form of constructive trusts is that which results when—
        "a person acquires the legal title to land * * * by means of an intentionally false and fraudulent 
verbal promise to hold same for a certain specified purpose, as, for example, a promise * * * to reconvey 
it to the grantor, * * * and having thus fraudulently obtained the title, he retains, uses, and claims the 
property as his own, so that the whole transaction by means of which the ownership is obtained is in fact 
a scheme of actual deceit. * * *" Pom. Eq. Juris. vol. 3, § 1055.
        In a footnote commencing on page 2038 of the volume just cited, it is said in substance that the 
doctrine is used with great efficacy to prevent fraud and protect persons under necessities in cases, 
among others, of execution sale, when land is bought in under prior fraudulent promise that the purchaser 
will take the title, hold the property for the benefit of the owner, and reconvey upon payment of the 
amount advanced for the purchase price, and having thus by fraudulent contrivance cut off competition 
and prevented the owner from making other arrangements to protect his property, and having obtained 
the property perhaps for much less than its real value, refuse to abide by his verbal promise and retains 
the land as absolutely his own.
        The rule stated is and always has been the rule in this state and all others which we have noticed, 
and for that reason we consider it unnecessary to cite cases. Brown v. Jackson, 40 S. W. 162, is, however, 
a case nearly parallel in its facts with the case at bar applying the rule. The facts which we are to accept 
as true in considering the court's action in sustaining the demurrer have been related. They speak for 
themselves, and we can add nothing to their meaning or force by presenting them and the inferences and 
deductions to be drawn therefrom in other, but similar, language and relation. That they disclose a 
constructive trust, or one ex maleficio, we think is obvious. The request to sell in parcels, the allegations 
of the petition show, would have realized sufficient funds to pay the indebtedness, and left appellants 
several hundred acres of land; but, due to the agreement of the parties, on which appellants relied, 
appellee bid in the land without competition for a sum much less than its real value. Subsequently it was 
agreed that appellee Riley should have possession
Page 720
and use of the lands during the year 1916, and the time for payment was extended by appellee on three 
several occasions, at the expiration of the latter of which appellee, upon the failure of appellants to pay 
the money admitted to be due, declined to grant a further extension of time, and inferentially, at least, 
asserted title and ownership to the lands. The failure to secure the money to repay the debt up to the time 
of filing the suit was due, according to the allegations, to the conduct of appellee in defeating the loans 
sought by appellants on the land, by disparaging appellants' ability to repay and misrepresenting the value 
of the lands to prospective lenders.
        Counsel for appellee, however, for a number of reasons, takes issue with us on the legal conclusions 
reached, which we will now consider.
        It is first contended that the facts alleged at most show a mere verbal promise to purchase and 
convey land, and that the doctrine of trusts ex maleficio does not apply. If the facts alleged comprehended 
no more than a naked promise by appellee to purchase and convey land to appellants, the trust relation 
would not exist. In every case "there must be an element of positive fraud accompanying the promise, 
and by means of which the acquisition of the legal title is consummated." 3 Pom. Eq. Jur. § 1056. There is 
such element in the case at bar, and it is found in the allegation that appellee acquired the title under 
promise to reconvey, and but for which promise he would not have acquired the title. If the facts alleged 
be true, the promise to reconvey was false, and hence the title was fraudulently acquired, and the trust 
relation arises as matter of law.
        Appellee asserts that the right to have lands sold in parcels applies only in cases where the land is 
seized under ordinary execution, and does not apply in cases where land is sold under process issued 
upon judgments foreclosing liens upon lands, and that as a consequence the alleged agreement is void 
and unenforceable, because based upon a right that did not exist. By statute it is provided in substance 
that when lands, not in towns and cities, are taken "in execution," the defendant in the writ may have the 
same sold in lots by furnishing the officer, at a time that will not delay the sale as advertised, a plat of the 
land as actually surveyed by the county surveyor in lots of not less than 50 acres, accompanied by field 
notes of each lot and the certificate of the county surveyor that same is correct. Article 3754, Vernon's 
Sayles' Civil Stats.
        Appellants proceeded under the article cited when they demanded the sale of their lands in parcels, 
and the contract between appellants and appellee Riley was entered into under the assumption that 
appellants were entitled to have the lands sold in lots as directed by that article. We conclude that process 
issued upon judgments of the kind recited are in contemplation of article 3754, supra, an execution. The 
requisites of an execution are set out in article 3729, Vernon's Sayles' Civil Statutes, subdivision 3 of 
which provides, among other requisites, that in case the judgment commands the sale of particular 
property the writ shall be framed accordingly. The subdivision, it occurs to us, contemplates sales under 
foreclosure proceedings. It is true that article 2,000, Vernon's Sayles' Civil Statutes, amplifies and deals 
particularly with the method and manner of selling property under judgments foreclosing mortgages and 
other liens and declares that in such cases an "order of sale" shall issue; but it also declares that land 
seized under such order of sale shall be sold as "under execution," and if the property directed to be sold 
is insufficient to satisfy the judgment to levy such writ "as in case of ordinary executions" on other 
property of the defendant, which is but to say in final analysis it is an execution. It is true that article 
2000, supra, restricts the use of an order of sale as an ordinary execution, since it cannot function in that 
respect until after sale of the land described therein. Bailey v. Block, 104 Tex. 101, 134 S. W. 323. But 
that it is equally an execution and an order of sale from the time of its issuance we think is obvious. 
Executions are judicial writs for the enforcement of judgments, decrees, orders, etc., and are largely what 
the Legislature declares they shall be.
        It is next urged that, even though appellants were entitled to have the lands sold in parcels under 
article 3754, supra, the demurrer was properly sustained, for the reason that the petition failed to show a 
compliance with the article. The precise point is that the petition failed to disclose that the county 
surveyor certified to the correctness of the plat and field notes alleged to have been prepared by him. The 
petition, while alleging the demand for the sale in parcels, did omit to allege that the plat and field notes 
tendered to the sheriff were certified to by the county surveyor, though it did allege the survey, 
preparation of field notes, and platting by that officer. The contention is, in our opinion, without merit, for 
the reason that the defect pointed out in the brief could not be reached by the general demurrer. Any 
defect in the form or manner of stating a fact should be pointed out by special exception, since a good 
cause of action, defectively stated, or the omission of a formal, but necessary, averment, is good against 
the general demurrer. Appellant's allegation was that he had demanded a sale of the lands in lots, which 
was sufficient against the general demurrer, but failed to allege that the plat furnished was certified by the 
county
Page 721
surveyor. Such failure was the omission of a formal fact, which could be challenged only by special 
exception.
        It is also urged that time was necessarily of the essence of the contract alleged by appellants, and it 
appearing from the allegations of their petition that they failed to comply with their original agreement, or 
the several extensions thereof, by payment of the money at the time agreed on, they were not entitled to 
the relief sought. The tendency of modern decisions is to hold that time is not ordinarily of the essence of 
contracts, "unless made so by express stipulation, or unless there is something connected with the 
purpose of the contract and the circumstances surrounding it which makes it apparent that the parties 
intended that the contract must be performed at or within the time named." 13 C. J. 687. Such seems to 
have been the rule in even the earlier cases in our courts. Edwards v. Atkinson, 14 Tex. 373; Primm v. 
Barton, 18 Tex. 206; Kirchoff v. Voss, 67 Tex. 320, 3 S. W. 548. There is in the contract alleged by 
appellants no express stipulation that time was of the essence of the contract, and hence, if time was 
important, it must be found in the purpose of the contract and the circumstances surrounding it. The 
purpose of the contract was, of course, to allow appellants further time in which to pay the debt and 
render appellees' security more efficacious. Some of the circumstances connected with and surrounding 
the contract tend to indicate that time was important, as witness the brief time allowed originally in which 
to redeem and the fact that the land was incumbered with a large prior lien. On the other hand, after 
appellee acquired the land, he not only extended the time for payment, but by agreement with appellants 
secured the use and possession of the lands for the year 1916, by which he was to apply the rentals and 
use thereof to the payment of the interest on appellee's debt. We do not believe the facts alleged warrant 
us in holding as matter of law that time was or was not of the essence of the contract, but that that issue 
is one of fact for the jury, under appropriate charge.
        It is also contended that the agreement alleged is without consideration, and hence unenforceable. A 
sufficient consideration is a benefit to the party promising or some trouble or prejudice to the party to 
whom the promise is made; also a mutual promise is sufficient, if concurrent in point of time. James v. 
Fulcrod, 5 Tex. 512, 55 Am. Dec. 743. The benefit moving to appellee was the acquisition of the title to 
the land without competition at public sale. The prejudice suffered by appellants was foregoing their legal 
right to have the lands sold in parcels and the consequent benefits probably resulting therefrom. The rule 
and the authorities on the point in great number will be found in 13 C. J. 311.
        It is next argued that even though the agreement alleged was made it appears from appellants' 
petition that they never offered to comply with the conditions annexed to the alleged trust until the filing 
of the suit, and that as a consequence such right was forfeited. The agreement alleged constituting in 
equity a trust, failure to pay the money at the time agreed upon would not prevent its enforcement unless 
as we have said at another place time was of the essence of the contract, which we have also said is an 
issue of fact to be submitted to the jury. Ordinarily suits to enforce the relief here sought, or to rescind 
contracts, etc., for fraud, must be prosecuted in a reasonable time under all the circumstances. What is a 
reasonable or unreasonable time is also an issue of fact for the jury. Tex. & Pac. Ry. Co. v. Jowers, 110 S. 
W. 946; Galveston H. & S. A. Ry. Co. v. Cade, 100 Tex. 37, 94 S. W. 219.
        Under the rule as announced Spann v. Stern, 18 Tex. 556, and followed by all subsequent cases, it 
was not necessary, in our opinion, for appellants to actually tender into court the money admitted to be 
due and owing to appellee. An offer to do equity and perform such decree as the court may enter is 
sufficient.
        In the view we take of the case, it is not necessary to review appellants' other assignments of error.
        We are also to be understood, when referring to the facts, as having reference to what the 
allegations of the petition show. The facts will, of course, be developed upon trial.
        For the reasons indicated the judgment is reversed, and the cause remanded, for further 
proceedings consistent with the views herein expressed.
        Reversed and remanded.