Broussard v. Tian, 3369

• Decision Date: 12 April 1956
• Docket Number: No. 3369,3369
• Citation: 290 S.W.2d 372
• Parties: Josie V. Daniel BROUSSARD, Appellant, v. M. J. TIAN et al., Appellees.
• Court: Texas Court of Appeals

Page 372

290 S.W.2d 372

Josie V. Daniel BROUSSARD, Appellant, v. M. J. TIAN et al., Appellees.

No. 3369.

Court of Civil Appeals of Texas, Waco.

April 12, 1956.

Rehearing Denied May 17, 1956.

Fred C. Reeder, Corpus Christi, T. E. Richards, Jr., Houston, F. B. Kimbell, Groesbeck, for appellant.

Dodson & Reagan, Marlin, M. E. Gates, Huntsville, Lewis M. Seay, Groesbeck, for appellees.

TIREY, Justice.

Appellant, plaintiff below, brought this suit against M. J. Tian, her former husband; Milton S. Burney and wife, Ida A. Burney; and Martha Inez James (who is a cross-plaintiff) to recover an undivided one-half interest in 520.5 acres of land in Limestone County, Texas. The trial was to a jury and the parties stipulated substantially as follows: That the Federal Land Bank of Houston, a corporation, is the common source of title; that appellant, on the 3rd of September, 1935, intermarried with appellee, M. J. Tian, and that they were divorced by decree entered in the District Court of Harris County on the 20th of September, 1941; that on the 24th of July, 1939, and while appellant was the legal wife of Tian, the Federal Land Bank of Houston executed and delivered to Tian a deed to the land in question and that as part of the consideration for the deed Tian executed and delivered to the bank a vendor's lien note in the principal sum of $1,600; that this note was secured by deed of trust executed solely by Tian, such note and lien securing the same, being the balance due and owing for the purchase price of said land; that on the 26th of April, 1944, Tian executed and delivered to defendant Burney a deed to all of the surface rights to the lands in controversy but reserved from said deed or conveyance all of the oil, gas and other minerals in the land, and that on the date of the execution of the deed there remained an unpaid balance of $1,036.05 on the $1,600 note aforesaid; that on the 28th of June, 1949 the Federal Land Bank executed a release of the vendor's lien and deed of trust lien which it held to secure the $1,600 note; that the total consideration for the deed from the bank to Tian was $2,080, and that of that sum $480 was paid in cash by Tian contemporaneously with the execution and delivery of the deed; that Tian, prior to his marriage to appellant, had acquired title to a tract of 220 acres of land in Galveston County, and on the 14th of June, 1939 he executed and delivered an oil and gas lease on the tract, for which he obtained a cash bonus of $11,000, and it also provided that he was to retain a 1/8th royalty; that the cash payment of $480 Tian made to the bank was paid out of the $11,000 cash bonus that Tian received from the oil and gas lease on his separate property; that out of the $11,000 cash bonus aforesaid Land Bank made payment to the Federal Land Bank on the $1,600 note as follows: Dec. 1, 1939, $155.43; Dec. 1, 1940, $207.21; Dec. 1, 1941, $207.21; Dec. 1, 1942, $207.21; Dec. 1, 1943, $207.21; that the defendants Burney do not claim any title or interest whatsoever in and to the oil and gas or other minerals in the land; that defendant Martha Inez James does not claim any interest in the oil, gas or other minerals in the land.

The court submitted one issue to the jury: 'Do you find from a preponderance of the evidence at the time the deed from the Federal Land Bank to M. J. Tian was executed that it was agreed and understood between the Federal Land Bank and M. J. Tian that the $1,600.00 note provided for in said deed would be paid out of the separate property of M. J. Tian?', to which the jury answered 'Yes'. There was no request for any other issues to be submitted.

Appellant seasonably objected to the court's charge and after the verdict was rendered seasonably filed her motion for judgment non obstante veredicto, which motion the court overruled, and granted defendant's motion for judgment, and in the decree we find this recital: '* * * and the court, after considering said findings of the jury and other undisputed proof and stipulated facts, is of the opinion and finds that plaintiff should take nothing against M. J. Tian, Milton S. Burney and Ida A. Burney' and decreed accordingly. And the court further decreed that Martha Inez James was not entitled to recover anything on her cross-action against M. J. Tian and the Burneys. Only Josie V. Daniel Broussard has perfected her appeal.

Appellant assails the judgment on what she designates as fifteen points. They are substantially: (1, 3 and 4) the court erred in submitting Special Issue No. 1 on the ground that there is no evidence to support such issue, nor was there any pleading to support the same, because plaintiff objected in writing to such testimony because the evidence affirmatively showed that neither Johnson nor Rosenshaw had authority from the bank to enter into any such agreement; (2) the court erred in admitting the testimony of Tian relating to any oral agreement that he may have had with Vick Johnson or Rosenshaw as agents of the bank on the ground that there was no pleading alleging any such agreement, and further because it was not shown that Johnson or Rosenshaw had any authority to make any agreement with Tian in behalf of the bank; (6) the court erred in submitting Special Issue No. 1 to the jury because plaintiff objected in writing to proof of a prior or contemporaneous oral agreement wherein Tian attempted to add to or detract from the terms of the written contract between him and the bank, and the 5th point is to the same effect; (7) the court erred in admitting testimony of Tian relating to any oral agreement between him and the land bank to the effect that the $1,600 note would be paid out of his separate property; (8) the court erred in submitting Special Issue No. 1 because appellant objected in writing that the contract for the conveyance of land is required by the Statute of Frauds to be in writing; (9) the court erred in admitting testimony of Tian relating to any oral agreement between him and the bank, acting by and through Johnson and Rosenshaw as the bank's agents, to the effect that the $1,600 note would be paid out of the separate property of Tian because the contract by a corporation for the conveyance of land must be in writing and signed by the president of the corporation; (10) the court erred in admitting the part of the judgment entered in Cause No. 11472-A in the District Court, 77th Judicial District, Limestone County, styled M. J. Tian vs F. M. James, reading as follows: 'The court finds from the evidence that plaintiff (M. J. Tian) was at the time of filing his original petition in said cause, the owner in fee simple of all the oil, gas and other minerals in, upon or under the following tracts of land fully set out and described in plaintiff's original petition filed in this cause, which land is described as follows: (here follows description of land involved in the present suit) because appellant was not a party to the cause of action wherein said judgment was entered, and by reason thereof said judgment is not binding upon her;' (11) the court erred in admitting testimony of the conditional sales contract between Tian and James reading as follows: '* * * that first party (M. J. Tian) represents that this is his separate property and will convey to second party (F. M. James) full fee title to such property * * * This property was purchased with separate and individual money obtained by leasing land owned by Mr. Tian before Mr. Tian was married.'; that the foregoing statements are conclusions of law and that the plaintiff, not being a party to same, said contract was and is not binding on her for any purpose, and that the statements and recitations quoted are self-serving declarations of the defendant Tian; (12) the court erred in rendering...