Franzetti v. Franzetti, 8729.

• Decision Date: 04 January 1939
• Docket Number: No. 8729.,8729.
• Citation: 124 S.W.2d 195
• Parties: FRANZETTI v. FRANZETTI.
• Court: Texas Court of Appeals

Page 195

124 S.W.2d 195

FRANZETTI v. FRANZETTI.

No. 8729.

Court of Civil Appeals of Texas. Austin.

January 4, 1939.

Rehearing Denied February 1, 1939.

Appeal from District Court, Travis County; Roy C. Archer, Judge.

Trespass to try title by Gertrude Franzetti against Guiditta Franzetti, wherein defendant filed a cross-action, making Louis Franzetti party defendant. From a judgment for the defendant, plaintiff appeals.

Affirmed.

Cofer & Cofer, of Austin, for appellant.

George S. Dowell and Hart, Patterson, Hart & Brown, all of Austin, for appellee.

BAUGH, Justice.

Gertrude Franzetti sued appellee, Guiditta Franzetti, in trespass to try title to a house and lot, situated in Austin, Texas; and prayed for, and was granted, a temporary injunction restraining Guiditta Franzetti from further prosecuting in the justice court a forcible entry and detainer suit theretofore filed against her by Guiditta Franzetti. In addition to general demurrer, general denial, and plea of not guilty, the defendant filed a cross-action in trespass to try title against Gertrude Franzetti, to which she also made her son, Louis Franzetti, husband of Gertrude, from whom he was separated, a defendant in such cross-action, and sought recovery of title and possession of said property as against both of them. By supplemental petition, Gertrude Franzetti asserted her title to the property predicated upon a parol gift thereof to her by Antonio Franzetti, deceased husband of Guiditta, during his lifetime; continuous possession of same by her thereafter, and improvements in good faith made by her. To this, Guiditta interposed, among other things, a plea of the statute of frauds. Louis Franzetti did not answer. At the close of plaintiff's evidence the trial court instructed a verdict in favor of the defendant, Guiditta Franzetti, dissolved the injunction, and rendered judgment in her favor on her cross-action against both Gertrude and Louis Franzetti; from which judgment Gertrude prosecutes this appeal on oath of inability to pay costs.

The first contention made is that there was ample evidence to go to the jury on the issue of a parol gift to the appellant of the property involved under such facts and circumstances as to remove it from the operation of the statute of frauds.

Louis Franzetti, son of Antonio Franzetti, and appellant were married in 1928. On April 14, 1930, a son was born to them. At that time they were residing on the property here involved. Without detailing the testimony here, we think it was clearly sufficient upon which the jury could have found that Antonio Franzetti, about the time of, or shortly after, the birth of his grandson, intended to make, and did make, a parol gift of said property to appellant and her infant son, that they might have it as a home. About that time, or shortly thereafter, the testimony showed that the real estate agent of Antonio Franzetti, who looked after his rental properties in Austin, came to appellant to collect rent from her on said property, and was informed by appellant that Antonio Franzetti had given her said property and that she would not pay any rent. No further effort was made by said agent to collect any rent, and appellant, her mother, and her infant son have continuously occupied, claimed, and used said property as a homestead. About three months after the birth of her son, Louis Franzetti separated from appellant and did not return. Antonio Franzetti died in the summer of 1931, some twelve or fifteen months after the asserted gift, and is not shown to have ever questioned it, though, according to the testimony, his agent had full notice of appellant's claim of the gift to her, and that she was continuously occupying said property as her own, under a claimed gift.

It is not controverted that appellant, and her then husband, Louis Franzetti, were in possession of the property at the time in question; nor that it was acquired by Antonio Franzetti in 1926, as community property of himself and Guiditta, and that he had authority to dispose of it. Its original cost was shown to have been $900.

Permanent improvements of the value of $150 were placed on said property by appellant in 1932, while in possession under a claim of ownership. These improvements were, however, made by appellant subsequent to the death of the alleged donor.

Under the decisions the requirements essential to remove a parol gift of land from the statute of frauds and render it enforceable in a court of equity now appear to be well settled. They are: (1) A gift in praesenti; (2) possession delivered by the donor at the time of the gift; and (3) substantial permanent improvements placed on the property by the donee, in reliance upon the gift, with the knowledge or consent of the donor; or, without such improvements, the existence of such facts as would make it a fraud upon the donee not to enforce the gift. Davis v. Douglas, Tex.Com.App., 15 S.W.2d 232; Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216; Trawick v. Buckner Orphans' Home, Tex.Civ.App., 45 S.W.2d 241; Turner v. Rogers, Tex.Civ.App., 106 S.W. 2d 1078; 21 Tex.Jur., § 16, p. 36. As to the first two of these requirements, the evidence was clearly sufficient to support a jury finding that they had been met. We have concluded, however, that because such improvements were not made until after the death of the alleged donor, appellant has not shown the grounds essential to remove the alleged gift from the operation of the statute of frauds.

Improvements made after the death of the donor have been expressly held not to remove a parol gift of land from the operation of the statute and render it enforceable in the following cases: Newcomb v. Cox, 27 Tex.Civ.App. 583, 66 S.W. 338; Hutcheson v. Chandler, 47 Tex.Civ.App. 124, 104 S.W. 434; Baldwin v. Riley, 49 Tex.Civ.App. 557, 108 S.W. 1192; Altgelt v. Escalero, 51 Tex.Civ.App. 108, 110 S.W. 989; Wilkerson v. Charo, Tex.Civ.App., 133 S.W. 481, writ refused; 21 Tex.Jur. § 19, p. 41. In support of her contention, appellant relies upon Edwards v. Old Settlers' Ass'n, Tex.Civ.App., 166 S.W. 423, writ refused. While language is used in that case, which, if taken alone and apart from the facts there involved, might indicate that improvements made after the death of the donor might suffice; when considered in the light of the facts there presented, that case is clearly distinguishable from the cases above cited wherein the exact question was presented, and is clearly not in conflict with them. In the Edwards Case, the improvements were begun in the lifetime of the lessor with his full knowledge, consent, and co-operation; and were completed after his death with the full knowledge, consent, and acquiescence of his wife, who accepted rent thereon and the full benefits therefrom for two years thereafter, and at no time repudiated the contract under which they were made. No such case is here presented and the Edwards Case is not here applicable.

The next question presented is whether the "other circumstances" shown by appellant would make it a fraud upon appellant not to enforce such parol gift. We have concluded that they do not. If the improvements be excluded, which they must because not made until after the death of the donor (Altgelt v. Escalero, supra), then what elements of fraud are to be found in the situation?

Appellant, her mother, and brother were living on the premises as tenants of Antonio Franzetti, her brother paying rent, in 1928, when appellant and Louis Franzetti were married. Thereafter Louis lived with them. Appellant's brother continued to reside with them paying rent to Antonio Franzetti's agent for about a year after such marriage, leaving the premises sometime in 1929. According to appellant's testimony she and Louis paid no rent after her brother left. Apparently they lived there without paying rent for about a year prior to the date of the alleged gift. After Louis left appellant, about...