Elder v. Craddock

• Decision Date: 12 May 1920
• Docket Number: (No. 6202.)
• Parties: ELDER v. CRADDOCK
• Court: Texas Court of Appeals

Page 314

223 S.W. 314

ELDER v. CRADDOCK

(No. 6202.)

Court of Civil Appeals of Texas. Austin.

May 12, 1920.

Rehearing Denied June 29, 1920.

Appeal from District Court, McLennan County; H. M. Richey, Judge.

Action by L. Craddock against J. Frank Elder. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. L. Eason, of Waco, for appellant.

U. F. Short, of Dallas, and D. A. Kelley, of Waco, for appellee.

BRADY, J. L.

Craddock sued J. Frank Elder in trespass to try title to recover the premises in controversy. The defendant answered by general demurrer, plea of not guilty, and by cross-action in the usual form of trespass to try title. The court gave a peremptory instruction for the plaintiff and against defendant on his cross-action, but submitted to the jury the issue of rents claimed by plaintiff. The jury returned the verdict as instructed, but found that plaintiff was not entitled to recover any rents.

The plaintiff claimed that defendant was his tenant under a rental contract executed in June, 1917. The defendant claimed that in 1913 he entered into possession of the premises in controversy under a parol contract of sale, and had made permanent and valuable improvements thereon, and therefore the statute of frauds was not applicable to the case. His claim will be more specifically stated hereafter.

By the first assignment the action of the trial court, in peremptorily instructing a verdict for appellee is attacked, upon the ground that there were issues of fact to be determined by the jury, especially the issue of a parol contract of sale, followed by possession and the making of valuable and permanent improvements on the property. We have concluded that this contention is well founded, and that the trial court should have submitted the issue to the jury. This is not a case where the defendant, upon failure of his title claims the value of improvements erected on the property, under article 7760, Revised Statutes, but the claim is one of title to the property, based upon possession, and the making of permanent and valuable improvements under a parol contract of sale.

The testimony of appellant and his wife tended to show a parol agreement with appellee and Mr. Staten, who was acting for or with appellee, by which appellant was to receive the title to the two lots in controversy, in consideration of his moving with his family to the house to be erected thereon, and enduring the hardships of living out in the addition where same was situated, as well as other considerations, and that the property was to be deeded to appellant upon his paying for the improvements, erected with money furnished by appellee. These improvements were to be paid for out of commissions as they accrued to appellant from the sale of other lots in the addition, in monthly installments. It was also shown by appellant that he had made valuable and permanent improvements on the premises, after having taken possession of the same, aggregating over $600, and he went into possession of the property shortly after the completion of the house, and had continued in possession up to the date of the trial. This is a sufficient statement of the evidence to show that an issue of fact was made which should have been submitted to the jury; and the giving of the peremptory instruction was, in our opinion, reversible error. Dixon v. McNeese, 152 S. W. 676, and authorities there cited.

In view of the probability of another trial, we think it proper to say that, since the appellee claims that appellant went into possession of the property as his tenant, and later under rental contract, which was attacked by appellant as having been obtained through fraud and deceit, the issue concerning this rental contract should be submitted to the jury. On the present trial it was assumed by the...