Bondies v. Ivey

• Decision Date: 09 January 1897
• Citation: 39 S.W. 156
• Parties: BONDIES et al. v. IVEY et ux.
• Court: Texas Court of Appeals

39 S.W. 156

BONDIES et al. v. IVEY et ux.

Court of Civil Appeals of Texas.

January 9, 1897.

Appeal from district court, Kaufman county; J. E. Dillard, Judge.

Action by George B. Bondies and Lucian Minor, executors of George Bondies, against T. F. Ivey and wife. Judgment for defendants, and plaintiffs appeal. Reversed.

Davidson & Minor, for appellants. Huffmaster, Adams & Huffmaster and M. H. Gossett, for appellees.

FINLEY, J.

This is the second appeal of this case, and the opinion on the first appeal, reversing and remanding the case, is reported in 31 S. W. 244. On December 25, 1890, George Bondies, since deceased, and whose executors are the present appellants, brought a suit of trespass to try title against T. F. Ivey (one of the present appellees), in the district court of Kaufman county, for 280 acres, a part of the Lopez league and labor. After appeal was taken and perfected from the former judgment of the district court George Bondies died, and at the September term, 1895, and after the reversal of the judgment on the former appeal, George B. Bondies and Lucian Minor, having qualified as the independent executors of the will of George Bondies, deceased, were made parties plaintiff in this suit, and on September 25, 1895, filed their second amended original petition against T. F. Ivey, the original defendant, and making his wife, Amanda Ivey, a party defendant also. The defendants Ivey and wife disclaimed as to all the land in controversy except 100 acres, described by metes and bounds, and as to this 100 acres they pleaded not guilty, and also set up, by special answer, certain contracts and state of facts existing, as they alleged, between George Bondies and T. F. Ivey, from 1877 to the institution of this suit, constituting, as they alleged, such an equity in T. F. Ivey in this 100 acres as estopped George Bondies and his executors from asserting an adverse title, and from dispossessing defendants, to wit: That T. F. Ivey in January, 1877, at the request of George Bondies, moved upon the Lopez league of land in Kaufman county, under contract with Bondies to protect his interests in said league, by keeping off squatters, protecting grass and timber, and preventing boundary encroachments, etc.; that in 1881, Ivey having continually remained in possession since 1877, and discharged all his duties under said first contract, he and Bondies entered into a new contract, by the terms of which, in consideration of the continued faithful discharge by Ivey of the duties above named, until Bondies or his children should move upon said league, or until Bondies should sell same, Bondies agreed to convey to Ivey 100 acres of land in the southwest corner of the league and labor; that Ivey had faithfully performed all the duties required of him under his contract; that in January, 1884, William Bondies, the son of George Bondies, and under his father's instructions, moved upon said league, and took possession thereof, except the 100 acres claimed by Ivey, and assumed control of the interest of Bondies in said land; that in July, 1884, Bondies himself came to Ivey's house, on said 100 acres of land, and, while there, walked with Ivey around said 100 acres, pointing out and designating to Ivey the lines and boundaries of said 100 acres which he intended Ivey to own and possess, and which he intended to convey to Ivey; that immediately thereafter Ivey procured the services of the county surveyor of Kaufman county, and had him survey out and establish the lines and corners of said 100 acres as designated and pointed out by Bondies, and immediately took possession thereof, claiming the same as his own, and steadily continued to do so; that at the time Ivey took possession of said 100 acres, as aforesaid, it was worth about $5 per acre, amounting in the aggregate to $500; that, at the time, said land was covered all over with brush; that after said 100 acres was surveyed, as aforesaid, Ivey inclosed it, cut off the brush, and put the land in cultivation, and put valuable improvements thereon, to wit, houses, fences, cisterns, wells, orchard, and cleared and broke the land, aggregating $2,321; and that all said improvements were placed upon said land upon the faith of the promise by Bondies to convey to Ivey said 100 acres; that said land without said improvements is worth $500, and with said improvements is worth $2,821; that it would be inequitable and unjust for appellants to deprive Ivey of said land; and prayed that the title to same be vested in Ivey, and that he have all such other and different relief as in law or equity he might be entitled to. The case was tried before the court and a jury, and resulted in a verdict and judgment for the defendants. The appellants moved for judgment in their favor non obstante veredicto, or for a new trial, which motion being overruled, they perfected their appeal, filed their assignments of error and statement of facts, and bring the case to this court by appeal.

Plaintiffs read in evidence: (1) Patent from the state of Texas to Adolphus Stern for the Juan Lopez league and labor of land, in Kaufman county, dated July 3, 1848. (2) Deed to said league and labor from A. Stern to William Heeder, dated October 26, 1848. (3) Deed to said league and labor from William Heeder to George Bondies, dated January 20, 1848. (4) Decree of partition of said Lopez league and labor, rendered by the district court of Kaufman county, Tex., in a suit entitled "George Bondies v. George T. Bondies et al.," dated June 1, 1889, with report of commissioners in partition, and confirmatory decree, dated June 18, 1889, setting apart to George Bondies one-half of the league and labor, including the land in controversy in this present case. (5) A plot of the subdivision made by Lucian Minor for George Bondies, deceased, of that part of the Lopez league and labor set apart by said decree of partition to the said George Bondies, said subdivision being made in October, 1889, said plot of said subdivision including the land described in...