Eastland v. Basey

• Decision Date: 17 July 1946
• Docket Number: No. 9576.,9576.
• Parties: EASTLAND et al. v. BASEY et al.
• Court: Texas Court of Appeals

196 S.W.2d 336

EASTLAND et al. v. BASEY et al.

No. 9576.

Court of Civil Appeals of Texas. Austin.

July 17, 1946.

Motion for Rehearing Withdrawn on August 31, 1946.

Appeal from District Court, Hays County; J. R. Fuchs, Judge.

Action in trespass to try title to land by James G. Eastland and others against Robert L. Basey and others. From judgment rendered on instructed verdict, plaintiffs appeal.

Judgment reversed and cause remanded.

J. Carroll McConnell, of Fort Worth, for appellants.

Emmett Shelton, of Austin, and Tom G. Oliver, Jr., of San Marcos, for appellees.

BAUGH, Justice.

James G. Eastland, Sr., for himself and as next friend of his minor son James G. Eastland, Jr., sued Robert L. Basey and numerous named heirs of Ella Lee Smith, deceased, in trespass to try title to 277 acres of land in Hays County; and to recover rents, the value of 80 head of goats, household goods, etc. Basey answered individually and as executor of the estate of Ella Lee Smith, alleging that he had been duly appointed independent executor of the estate of Ella Lee Smith under her will which had been duly probated; that said estate still owed debts which were unpaid and that such administration was still pending.

The only title claimed by the appellants was that in 1931 Ella Lee Smith had made a parol gift of the lands to James G. Eastland, Sr., and of the goats to his minor son, then only about 4 years of age; and that pursuant to such parol gift he had taken possession of said premises and made valuable improvements thereon in good faith, in the presence of and with the full knowledge, consent and approval of the donor, who lived with him.

Trial was to a jury, but at the close of plaintiffs' evidence the trial court instructed a verdict for the defendants and rendered judgment accordingly; hence this appeal.

Three questions are presented: 1. Whether there was sufficient evidence to go to the jury, under the burden of proof imposed upon a claimant of lands under a parol gift of land. 2. Whether James G. Eastland, Sr., who was not an heir of Ella Lee Smith, deceased, was barred by Art. 3716, R.C.S., from testifying as to transactions with the deceased. And 3. As to facts and circumstances which did not constitute transactions with deceased. Appellants also complain of the failure of the trial court to sustain special exceptions to appellees' answer; but this latter point has not been briefed and will be treated as abandoned.

We have concluded that the trial court erred in instructing a verdict; that the testimony of appellant as to transactions with the deceased came within the purview of Art. 3716; and that his proffered testimony, as shown by bills of exception, failed to show any facts which did not constitute transactions with the deceased.

The law is now settled as to the facts essential to establish a parol gift of land so as to remove it from the operation of the statute of frauds. It must be established that there was "(1) a present gift; (2) possession under the gift, taken and held by the donee with the consent of the donor; and (3) permanent and valuable improvements made on the premises by the donee, * * * with the consent or knowledge of the donor." Davis v. Douglas, Tex.Com. App., 15 S.W.2d 232, 233. See also Turner v. Rogers, Tex.Civ.App., 106 S.W.2d 1078; Nichols v. Nichols, Tex.Civ.App., 170 S.W. 2d 558; 21 Tex.Jur., § 16, p. 36. Where the parol gift is asserted after the death of the donor, proof of all of the essential elements must be clear and satisfactory. But whether the testimony meets such requirement in a particular case as to any or all of such requirements is a fact issue for the court or jury to determine from a preponderance of the evidence. See Barrett v. Calloway, Tex. Civ.App., 66 S.W.2d 367, and numerous cases therein cited; Martin v. Martin, Tex. Civ.App., 207 S.W. 188.

And where, as here, the trial court instructs a verdict, in testing the sufficiency of the evidence to go to the jury, the well recognized rule prevails that only the evidence favorable to the complaining party need be considered; and that to the contrary disregarded, unless such evidence contra be undisputed and conclusive as a matter of law.

There was evidence to show appellant was a grandnephew of deceased's former husband, Robert E. Lee, who died about 1924. That they had reared him since he was a small child and deceased was very much attached to him. Subsequent to Ella Lee Smith's remarriage, appellant who had reached maturity left such former home. Upon the death of her second husband in 1930 or 1931, appellant at her request returned to the property here involved where he, his family and Ella Lee Smith lived together for about five years. Several witnesses testified as to repeated statements of Ella Lee Smith during that period of occupancy that she had given the property to appellant, and that she could not and would not sell it for that reason. These statements, according to witnesses, were reiterated by Ella Lee Smith on numerous occasions after 1931, some only a few months before she died in 1944. There was testimony also to the effect that appellant and his children, after they left the place in 1936, made numerous visits with Ella Lee Smith; that appellant sent her money and presents on occasion; and that during her last sickness she made several requests that appellant be notified and indicated her desire to see him.

After appellant moved on the property in 1931 and during his five-year occupancy of it, he tilled the farm; cared for the live stock; hauled many loads of rock from the field; repaired and rebuilt fences; continuously improved it; moved and rebuilt the barn, paying for some of the labor and furnishing some additional lumber;...