Hutcheson v. Chandler

• Decision Date: 24 June 1907
• Citation: 104 S.W. 434
• Parties: HUTCHESON v. CHANDLER et ux.
• Court: Texas Court of Appeals

104 S.W. 434

HUTCHESON v. CHANDLER et ux.

Court of Civil Appeals of Texas.

June 24, 1907.

Rehearing Denied October 10, 1907.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Action by J. C. Hutcheson against J. W. Chandler and wife. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Hutcheson, Campbell & Hutcheson, for appellants. A. R. & W. P. Hamblen, for appellee.

REESE, J.

This is an action in trespass to try title by J. C. Hutcheson against J. W. Chandler and Katherine Chandler, his wife. Upon trial, with a jury, there was a verdict for defendants, and from the judgment plaintiff appeals.

The suit involves the title to two lots, being a piece of ground 100 feet square in the southeast corner of a tract known as the "Malone acre," in the city of Houston. Appellant, claiming to be the owner of a tract of land 260 feet from east to west and 168 feet from north to south, called the "Quinn place," adjoining the Malone acre and the lots out of the Malone acre here claimed by appellees, instituted suit on the 31st of December, 1903, against appellees to recover the same. On May 19, 1906, appellant filed an amended petition, in which he described the same land described by him in his original petition, and, in addition thereto, alleged that he had since the filing of his original petition, acquired title from one J. J. Davidson to 100 feet square in the southeast corner of the Malone acre, being the same land claimed by appellees, for which he also sued. The deed from Davidson was dated December 9, 1905. Appellees filed an answer, disclaiming any right to the land claimed by appellant in his original petition, except in so far as it embraced a tract 100 feet square adjoining it on the north and in conflict with the same, as to which they pleaded not guilty, and further pleaded, as to said land claimed by them, verbal gift from Stephen O'Flynn and wife, Susan O'Flynn, the owners, to appellee, Katherine Chandler, executed about the year 1891, and before her marriage to J. W. Chandler, setting up possession and valuable improvements thereunder. Appellees also pleaded the statute of limitations of 10 years. By supplemental petition, appellant excepted to the allegations of the answer setting up the parol gift, when by leave of the court appellees filed a trial amendment, setting out more specifically the facts with regard to the gift, possession, and improvements thereunder. The Quinn acre, as claimed by appellant in his original petition, conflicted with the land claimed by appelles in the Malone acre to the extent of 50 feet. The jury found that the 50 feet was a part of the Malone acre, and belonged to the 100 feet square in the southeast corner claimed by appellees. Davidson by his deed conveyed to appellant the entire 100 feet square claimed by appellees, but he, in fact, had title to only an undivided one-fourth thereof, provided appellees' title is not sustained. One of appellant's contentions is that he is entitled to recover the entire 100 feet square by virtue of his ownership, under the Davidson deed, of an undivided one-fourth thereof; appellees having no title.

By his fourth assignment of error, appellant assails the charge of the court in submitting to the jury the right of appellees to recover on their alleged parol gift from Stephen O'Flynn and wife to Mrs. Chandler, on the ground that the evidence did not authorize the submission of this issue. We are of the opinion that this assignment must be sustained. The evidence as to such gift is contained in the testimony of Mrs. Chandler, and is, in substance, that in 1891 O'Flynn and wife took her with them in a wagon to where this property was, and told her that was her piece of land, and to do with it what she pleased. The lots were under fence at the time, but had no other improvements. Mrs. Chandler was a niece of Stephen O'Flynn, and was living with him. He had brought her from New York to make her home with him. Stephen O'Flynn died in July, 1893. The evidence as to the parol gift might be considered sufficient to show that the gift was made as alleged, but the evidence of improvements made upon the faith of the gift is not sufficient to authorize the submission of the issue to the jury. Up to the death of Stephen O'Flynn in 1893, practically nothing had been done in the way of improvements upon the land. Appellees testified in a vague and indefinite way that they had fixed the fence, and had planted out three or four fig trees and a few rose bushes, but it is clear from their testimony that the value of these improvements was insignificant, and it is doubtful if any improvements were made prior to the death of O'Flynn. Equity will sustain a parol gift of land, notwithstanding the statute of frauds, under certain circumstances; but one of the essential requisites is that possession must be taken and improvements of some substantial value made upon the land by the donee with the acquiescence of the donor upon the faith of the parol gift. The improvements so made must be of material and substantial value, having relation to the value of the land. 14 Am. & Eng. Ency. of Law, 1042; Anna Berta Lodge v. Leverton, 42...