CULVER, Justice.
Tom Ditto, appellant and plaintiff below, sued appellees Elizabeth Piper and husband for title to and possession of a tract of land in the town of Arlington, Tarrant County, Texas. Appellee filed her cross-action, claiming an undivided one-half interest in the property, and based on a jury verdict, the trial court entered a judgment in her favor.
Appellant, on the death of his wife, the mother of appellee, was appointed and qualified as guardian of the estate of Elizabeth his only child, then a minor. In 1918, during the pendency of the guardianship, and while Elizabeth was about sixteen years of age, appellant conveyed the realty in question which was admittedly his separate property, to Elizabeth by warranty deed. It seems evident that this conveyance was made in anticipation of a judgment that might be rendered against appellant and subsequent judgment lien and execution. In 1924, Elizabeth, then a feme sole, and twenty-two years of age, conveyed the property back to her father by warranty deed. She testified in substance that her father told her that if she would execute this deed of conveyance, he would hold one-half of the property in trust for her, and that when it was sold, or at his death, she would get her one-half interest. The appellant denied that any such promise or agreement was ever made by him.
Appellant's point that the evidence is wholly insufficient to support the judgment rendered is overruled. The testimony of appellee, the substance of which is given above, is sufficient in our opinion to make an issue of fact as to whether or not her father created the trust for her in this property. A trust may be engrafted on a deed by parol evidence. Faville v. Robinson, 111 Tex. 48, 227 S.W. 938; Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471. It is to be noted that Vernon's Annotated Civil Statutes, Art. 7425b-7 does not here apply inasmuch as the trust, if any, arose prior to the effective date of this statute. Sevine v. Heissner, 148 Tex. 345, 224 S.W.2d 184.
In 1938, Elizabeth Piper, joined by her husband, executed a release as follows: "In consideration of the sum of $250, to me cash in hand paid by Tom Ditto, receipt of which is hereby acknowledged and confessed, and in consideration of the previous deliveries to me of real estate and of cash paid in distribution, the receipt of which is also hereby acknowledged and confessed, do by these presents for myself, my heirs, executors, and administrators, release and forever discharge the said Tom Ditto, individually and as guardian of my estate in probate matters, styled Guardianship of Elizabeth Ditto, a minor, in the Probate Court of Tarrant County, Texas, of and from all manner of debts, demands, obligations, liabilities, suits, and causes of action whatsoever against him, the said Tom Ditto, individually and as guardian, in any manner claimed, owned, held or possessed by me at the time of the execution of this instrument." Appellant complains that the court erred in excluding this release from the evidence. Appellant pleads this release in his third supplemental petition, asserting, "that no promise or representation was made by him to the defendants or either of them, but that if the defendants had any cause of action as alleged in their answer and cross action, then the same is barred because such suit or cause of action is within the provision of the release executed by the defendants and same has long been settled, compromised and released." The release itself was broad and sweeping in its terms and it should have been admitted in evidence. Where a release is ambiguous as to what causes of action were intended to be included, parol evidence is admissible to establish the intention of the parties at the time. Atchison T. & S. F. Ry. Co. v. Fiedler, Tex.Civ.App., 158 S.W. 265; McGranahan Lumber Co. v. Pyramid Asbestos & Roofing Co., Tex.Civ.App., 18 S.W.2d 224.
Appellee in his first counter point maintains that the release was not admissible "because it did not contain words of conveyance and could not act as a means of conveyance of the equitable title sought to be recovered by the defendant, Mrs. Piper." In support of this theory, appellee cites the case of Beaty v. Thos. Goggan & Bros., Tex.Civ.App., 131 S.W. 631, 632. This case is not in point. It merely holds that "there is nothing in the instrument nor in the evidence to indicate that, by the execution of said instrument, the grantors therein intended to pass title * * * to any land belonging to said estate." The alleged trust being oral, no formal conveyance by the cestui que trust was therefore necessary to cancel, set aside the trust or to relinquish the rights thereunder. "The cancellation of a secret trust may be shown by parol." Archenhold v. B. C. Evans Co. 11 Tex.Civ.App., 138, 32 S.W. 795. "The reason of the rule seems to be that under a resulting trust the interest of the beneficiary is primarily the possession of a right of action against the trustee which may be waived or lost in the same manner as any other cause of action." Wright v. Wright, 134 Tex. 82, 132 S.W.2d 847, 849; Barber v. Coleman, Tex.Civ.App., 173 S.W.2d 660; Knight v. Tannehill Bros., Tex.Civ.App., 140 S.W.2d 552; Rebold Lumber Co. v. Scriptures, Tex.Civ.App., 279 S.W. 586.
Appellee testified that after the conversation with her father, shortly before the execution of the deed to him in 1924, nothing was ever said between them in this connection until after the appellant had
"Q. When the sale came up and your father questioned your right to any of the property at all, did you assert your right then to your half interest in it? A. Why, I didn't do anything.
"Q. Well, what I mean did you claim your interest in half of it when your father came to you about the sale? A. Oh, yes."
On cross-examination:
"Q. Now you say your father came to you and offered you a $1,000 if you would sign a quitclaim deed out there? A. He sent Lindsey Brown to me to offer it.
"Q. Then Tom Ditto did not talk to you at all, did he? A. Yes, he did, he called me up over the telephone and blessed me out because I didn't sign it."
Again, she testified:
"A. He sent this lawyer to me, first, and offered me a $1,000 if I would sign the deed."
There is authority for appellees' contention that it is within the discretion of the trial court to determine from surrounding facts and circumstances whether or not the offer was in compromise and appellate court is not authorized to overrule that discretion. Merchants' Cotton Oil Co. v. Acme Gin Co., Tex.Civ.App., 284 S.W. 680. It is manifest here, however, that appellant was confronted with the necessity of securing a deed from his daughter or losing the sale. "If the object of the party in making the offer was to buy his peace, which is impliedly manifested by a mere proposition to pay a sum in settlement, it is deemed to have been made without prejudice, and will be excluded." 17 Tex.Jur. 563, Sullivan v. Missouri K. & T. R. Co., 110 Tex. 360, 220 S.W. 769.
The title opinion was offered by appellant "solely for the purpose of showing there was a legal technicality involved and not the question of the recognition of a half interest or any interest which she might have." The appellant complains that the exclusion of this testimony was error, and this contention is upheld. The objection leveled by the appellee and sustained by the trial court was that the title
For the errors above pointed out, the cause is reversed and remanded.
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