Curlin v. Hendricks

• Decision Date: 01 January 1871
• Citation: 35 Tex. 225
• Court: Texas Supreme Court
• Parties: J. H. CURLIN, ADMINISTRATOR, AND OTHERS, v. O. HENDRICKS.

35 Tex. 225

J. H. CURLIN, ADMINISTRATOR, AND OTHERS,

v.O. HENDRICKS.

Supreme Court of Texas.

1871.

1. That a mere voluntary defective conveyance or donation of real estate will not be enforced, either at law or in equity, is too well settled to be now questioned.

2. While a valuable consideration is requisite to invoke the aid of equity in the enforcement of a defective conveyance, it is not necessary that the consideration be of a pecuniary character, nor that it be a full or adequate equivalent for the property. If some benefit is to enure to the party promising, or some detriment to be sustained by the promisee, it constitutes a sufficient consideration.

3. Reviewing the case of Bove v. Davis, 14 Tex. 331, this court disapproves the disposition made of that case, and considers that a sufficient consideration was established therein. And with respect to the case of Neal v. Neal, 9 Wallace, 8, this court deems that the valuable considerations of marriage and the expenditure of money were shown, and sufficed to uphold the parol promise and equities.

4. In 1846, one B. avowed his wish to purchase the town lot in controversy for his two sons, and having then purchased it, he said, on several occasions in 1847 and 1848, that he had given it to his son Francis, who, in the spring of 1847, went into possession of it, improved it, and subsequently occupied and claimed it as his own. No consideration of any kind passed, and B. died in 1850, without making any conveyance or other disposition of the property. H., the plaintiff in this action of trespass to try title, recovered a money judgment against Francis in 1857, levied on the lot as his property and bought it at the sheriff's sale in March, 1857. Held, that Francis, as a donee or purchaser from his father, acquired no title or right which could be protected or enforced by the courts in his favor, or in favor of any one claiming under him; that his improvements, being made without his father's consent and for his own benefit, with full knowledge of the condition of the title, raised no equity which the courts could enforce; and that if he had any right to compensation for his improvements, it was an uncertain right, ascertainable only by decree, and was not subject to execution, so as to vest in the plaintiff by virtue of his purchase at the sheriff's sale. But any interest inherited by Francis from his father, and held by him at the time of the sheriff's sale, passed under it to the plaintiff, who is entitled to recover in this action.

5. Title by ten years' limitation cannot be established by proof upon the trial, unless the pleadings of the party contain proper allegations as the basis of the proof.

APPEAL from Harrison. Tried below before the Hon. J. B. Williamson.

There was a former appeal in this case, of which a report will be found in 30 Tex. 296. The original pleadings of the parties, and the principal facts down to that stage of the case, will there be found. After the remand of the cause upon that appeal, the defendants amended their pleadings, but the amendments have no bearings upon the questions discussed in the present opinion of the court. The defendant Snediker having died, his administrator, the appellant Curlin, was made a party.

The charge of the court to the jury consisted merely of twenty-five special issues, without any exposition of the law. On the responses of the jury to these issues, judgment for the plaintiff was rendered, not only for the land but also for sixteen hundred dollars of rents since the institution of the suit, as found by the jury. Motions of the defendants for a new trial, and for the correction of the judgment, were overruled, and they appealed.

The property in controversy was a lot in the town of Marshall, Harrison county; and not in “the town of Harrison,” as stated in 30 Tex.

G. Lane and Poag & McKay, for the appellants. The fifth and sixth assignments will be considered together. They comprise the errors of not giving judgment on the special verdict for the defendants; or at least to all of them, and as to all interests, except the interest of F. W. Brewer, derived as heir to his father.

The case was reversed at the spring term, 1867, at Tyler (see case of Hendrick v. Snediker and others), and the cause remanded “for further proceedings in accordance with the opinion of this court.” This opinion commences by indicating a dissent to the principles on which the discussion of Boze v. Davis is rendered (14 Texas, 336), and indicating that the authorities cited by Chief Justice Hemphill do not support his views, and citing the case of King v. Thompson, 9 Pet. 204, of the supreme court of the United States as presenting principles more congenial, with the case of Shepherd v. Bever 9 Gill, 32, supreme court of Maryland, of same character. The opinion then states: “But if in the case before us it should be held that F. W. Brewer, the defendant in execution, was entitled to have claimed performance of the parol promise of his father, to make him a title to the lot, we feel by no means satisfied it would benefit the appellant. Would the equitable rights of the party making improvements, under such circumstances, be subject to levy and sale under execution?” After showing that such an interest was not subject to sale under execution, the opinion leaves the matter for future discussion. The opinion then says: “Whatever may be thought as to the foregoing questions, on the first of which the case was evidently decided, the judgment must be reversed. It is averred in the petition and admitted by the demurrer, that the defendant in the execution went into possession of the lot in January, 1847, and from that time until the purchase by appellant at sheriff's sale in March, 1857, he occupied, improved and held said lot in exclusive possession as his own property,” etc. Evidently, then, he had acquired by his possession of it, “full property, precursive of all other claims,” by virtue of the seventeenth section of the statute of limitation, although his possession was without any evidence of title whatever. The discussion closes by assenting to the propriety of the court below sustaining the demurrer to the amended petition of plantiff, amending his prayer, which will be more particularly referred to hereafter.

I wish to call the attention of the court, first, to that portion of the opinion which decides the case on the possession of ten years and the statute of limitations. I have quoted the language of the opinion, which says the plaintiff avers in his petition, and it is admitted by the demurrer, that F. W. Brewer “went into the possession of the lot in January, 1847, and from that time until the purchase by appellant at sheriff's sale, in March, 1857, he occupied,” etc. Here the court rendering the opinion committed a mistake, or the copy of the record which was sent up, on which the case was decided, was unfaithfully given. On the first page of the amended petition, the plaintiff avers that he recovered a judgment against F. W. Brewer and one Adams, on which an execution issued, which, on the thirteenth day of January, 1857, was levied on the east half of lot No. 3, block No. 64, and that it was sold on the second day of March, 1857. The plaintiff then goes on to state, “That on, to wit: the ____ day of January, 1847, Balaam H., the father, was the owner of the lot by title deraigned from the government, etc.; that on, to wit: the day and year last aforesaid, donated it to F. W. Brewer, and then put him in possession thereof, etc.; that the said Francis W. then, in consideration of said donation, entered into said premises, and held them adversely, etc., until, to wit: the date of the aforesaid levy.” On the third page of amended petition the plaintiff says, “On, to wit: the ____ day of January, 1847, the said Francis commenced in said house the business of a grocery merchant, and continued to occupy it till the ____ day of ____, 1857, and afterwards, and until the levy aforesaid;” and “that after said donation, and until the levy aforesaid, said Francis always claimed the property as his own,” etc. The plaintiff then, on the same page of the petition, says, “And the plaintiff shows that, by reason of the premises aforesaid, first, the said Francis W. was, at the time of said levy and sale, vested with a valid and perfect equitable title to said premises,” etc.; second, “the plaintiff succeeded to, and became vested with all the right, title and interest aforesaid of the said Francis W.” This portion of the petition is not an averment of facts. It is true he says he was, at the date of the “levy and sale,” vested with title, but he says the reason he thinks so is “by reason of the premises aforesaid;” that is, he thinks so, because he went into possession on the ____ day of January, 1847, under the alleged donation, and remained in possession till the date of the levy; but that is a mere conclusion of law, in which he may or may not be mistaken. The petition would be as good without it as with it.

This is all in the petition relative to the time of taking possession and the length of holding, and leaves that as stated by the plaintiff, that F. W. Brewer entered on the lot on the ____ day of January, 1847, and held it until the levy, which was on the thirteenth of January, 1857. There is no averment in the petition, as stated in the opinion, that F. W. Brewer held it from January, 1847, till the sale, in March, 1857, covering a period of ten years, by which to hold, by the seventeenth section of the statute of limitations, and leaves the averment that F. W. held from the ____ day of January, 1847, till the date of the levy, which was the thirteenth of January, 1857. It is true that ten years might elapse from the ____ day of January, 1847, till the thirteenth day of January, 1857, but it rests entirely on what day in January, 1847, the blank is filled with. The plaintiff does not fill the blank with any...