Baker's ex'Rs v. De Freese

• Decision Date: 09 March 1893
• Citation: 21 S.W. 963
• Parties: BAKER'S EX'RS v. DE FREESE.
• Court: Texas Court of Appeals

21 S.W. 963

BAKER'S EX'RS v. DE FREESE.

Court of Civil Appeals of Texas.

March 9, 1893.

Appeal from district court, Harris county; James Masterson, Judge.

Action of trespass by W. R. Baker's executors against Isa R. De Freese to try title to certain real estate donated by plaintiffs' testator to defendant. There was judgment for defendant, and plaintiffs appeal. Affirmed.

E. P. Hamblen, for appellants. Hutcheson, Carrington & Sears, for appellee.

PLEASANTS, J.

This is a suit by appellants, as the independent executors of the will of W. R. Baker, deceased, of trespass to try title against Mrs. Isa R. De Freese, for lots 9, 10, and adjacent halves of 11 and 8, in block 277, on the south side of Buffalo bayou, in the city of Houston. The defendant answered by a plea of not guilty, and that on July 14, 1881, W. R. Baker bought the lots in controversy in his own name, but actually in trust for defendant, and in pursuance of same gave the lots to her, and immediately constructed on the lots for her a dwelling house and other improvements, which he also gave and donated to her, and about October 10, 1882, in pursuance of said purchase and trust, and to perfect the gift, he put defendant in the full and actual possession of the property as her own, and vested the same in her in fee simple, forever, and she has ever since that date to the present had and retained the actual, adverse, and exclusive possession of it, with his full knowledge that she was claiming and holding it as her own, and adversely to him, and that on the faith of this gift, and on the faith and belief that the property was hers, she had, after she was put in possession, and during W. R. Baker's life, and with his knowledge, made permanent and valuable improvements upon it at a cost and to the value of $5,000, stating the character of them, and has for eight years devoted her whole time, care, and attention to the repairing and preservation of the property to the value of $500 per year; that she would not have done this or improved the property had she not believed it hers; and that Mr. Baker, during his life, always recognized the property as hers, and made no claim to it, although he saw her improving it as her own, and knew she so claimed it. She pleaded estoppel by reason of the facts set up, and prays enforcement of the gift, and to be quieted in her title and possession. By a supplemental petition, plaintiffs denied the gift, and pleaded that Mr. Baker bought the lots and erected thereon a commodious residence, with all necessary outhouses, fences, etc., all of which he paid for, and that he did so for the purpose of the defendant occupying the same during his pleasure; that he studiously refrained from any act that would divest him of the title to said property; that he assessed and paid taxes on the same in his own name from date of purchase to his death; that he insured the improvements in his own name; that, if the defendant placed any improvements on said lots, they were of little value; that the rental value of the property was $40 per month, and far exceeded the value of any improvements, and that during all the time that defendant occupied said premises, W. R. Baker gave to her, monthly, the sum of $150, which more than compensated defendant for the value of any improvements, etc., and for any service rendered by her in preserving and improving the premises. To this the defendant, by supplemental answer, replied that if Mr. Baker assessed and paid taxes on the property, or insured it, he did so for her; that it was his habit and custom to take charge of the property of his sister and of this defendant, and to assess and insure same in his own name, and his doing so was not for the purpose of claiming it as his own; that in 1879 she was living in Grimes county, in her home, on a small farm, on which she was able to make a support for herself and her minor children; that she was the youngest and only sister of Mrs. Hester E. Baker, the wife of W. R. Baker, and they (Mrs. Baker and W. R. Baker) induced her in 1879 to leave her farm in Grimes county and come to Houston, to be and live near her sister, upon their expressed promise and stipulation that he (Baker) would give and donate her a house and lot for a home in Houston, and would assist her, besides, to support herself and her children; that he was a man of large wealth, and, knowing that it would be no imposition on him, she left her home in Grimes county, and moved to Houston, in reliance upon the said promise, which he (Baker) fulfilled by giving her this property, and by assisting her with money to support herself and her children; that her improvements made upon and her care of the property have greatly enhanced its value, and that it would be now inequitable and unjust to permit Mr. Baker's executors to maintain a claim against her which he himself never thought of asserting; that it would damage her irreparably, and leave her homeless and penniless. The case was tried by a jury, and a verdict and judgment rendered for the defendant, and the case comes here on appeal from that judgment by plaintiffs in the court below.

From this statement of the nature of the plaintiffs' suit, and the answers of the defendant, it will be seen that the defense relied on is a parol sale or donation, with part performance thereof, from the plaintiffs' testator to the defendant. What constitutes part performance of a parol sale or gift of land, and such as will relieve the purchaser or donee from the operation of that section of the statute of frauds which requires every sale or gift of land to be evidenced by writing, has long been a vexed question. By many of the most eminent jurists and judges of this country it has been held that if the purchaser or donee was placed in possession of the premises by the vendor or donor, or if possession was taken with his knowledge and consent, under an expressed promise from him to convey the property, such naked possession constituted part performance of the contract, and would take the sale or gift out of the operation of the statute, and the purchaser or donee might compel the owner to convey title, by deed, to the property; otherwise, the owner, by repudiating his promise, might subject the occupant of the land to damages for trespass. By other courts it has been held that mere possession of the premises is not sufficient to...