Ivey v. Bondies

• Decision Date: 04 December 1897
• Parties: IVEY et ux. v. BONDIES et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

44 S.W. 916

IVEY et ux. v. BONDIES et al.¹

Court of Civil Appeals of Texas.

December 4, 1897.

Appeal from district court, Kaufman county; J. E. Dillard, Judge.

Action by George B. Bondies and others, executors, against T. F. Ivey and wife. Judgment for plaintiffs. Defendants appeal. Affirmed.

Huffmaster & Huffmaster and M. H. Gossett, for appellants. Davidson & Minor, for appellees.

FINLEY, C. J.

This is an action of trespass to try title, originally instituted in the district court of Kaufman county, December 25, 1890, by George Bondies, now deceased, against T. F. Ivey, for 280 acres of land, a part of the Lopez league and labor. At the September term, 1895, of said court, George B. Bondies and Lucian Minor, independent executors of the will of said George Bondies, deceased, made themselves parties plaintiff, and by amended original petition filed September 25, 1895, made Amanda Ivey, wife of said T. F. Ivey, a party defendant. On March 2, 1897, defendants filed their fourth amended original answer, in which they disclaimed, as they had theretofore done, title to all the land in controversy except 100 acres in the southwest corner of the Lopez league and labor, occupied and used by them as a homestead, particularly described by them by metes and bounds, and as to this they pleaded not guilty; and for further plea alleged that in January, 1877, defendant T. F. Ivey, at the special instance and request of plaintiff George Bondies, entered into said league, and that in July next following they entered into an agreement to the effect that T. F. Ivey was to continue the possession of said league, and protect plaintiff's interest therein, in consideration of the defendant's having the free use of the cultivated land upon said league and of such grass as was needed for his stock; that this agreement continued until about the year 1881, at which time they entered into another agreement, whereby said Ivey was to remain upon the land, and continue to look after plaintiff's interest, to preserve his timber, to prevent persons from cutting grass without paying for same, to prevent persons from inclosing any part of plaintiff's land or putting improvements thereon, and to keep off squatters and all other persons who might attempt to take adverse possession thereof; that these services were to continue until no longer needed, — that is to say, until plaintiff or his children should move upon said league, or until plaintiff should sell the same, — and that, in consideration of said services, plaintiff agreed to convey to T. F. Ivey 100 acres in the southwest corner of said league and labor; that defendant fully complied with said contract, and faithfully performed all the duties required of him under the said contract; that in January, 1884, William Bondies, a son of plaintiff, under plaintiff's instructions, came up and took possession of said league and labor of land, except the said 100 acres, and inclosed 2,000 acres thereof, and controlled and looked after said league and labor for plaintiff; that in July, 1884, plaintiff George Bondies came to defendant's residence, on said 100 acres, and walked around said 100 acres, pointing out and designating to defendant the lines and boundaries of said tract which said plaintiff intended defendant to own and possess, and for which he intended to execute to defendant a deed, and did then and there, in consideration of the services already rendered by defendant, make a parol sale of the said 100 acres to defendant, and promised and agreed to make defendant a deed to said land when defendant put said 100 acres in a good state of cultivation; that defendant, relying on the faith of said parol sale, promise, and agreement, proceeded at once to put said 100 acres of land in a good state of cultivation, and in all other things complied with his part of said parol sale, and immediately thereafter procured the county surveyor, and had said 100 acres surveyed, and the lines and corners thereof established, as designated and pointed out by plaintiff, and immediately took possession thereof, claiming the same as his own, and has continued such possession and claim to the present time; that at the time defendant so took possession said land was worth about five dollars per acre, it being hammock land and covered with brush; that after the same was surveyed out as aforesaid defendant inclosed the same with a first-class post and wire fence, and with much labor grubbed out said land, and converted the same into a fine and valuable farm, and with the knowledge and consent of plaintiff, and with the honest belief that said land was his, defendant placed thereon valuable and lasting improvements of the value of $2,321, and said place is now worth $2,820, and defendant in his answer specified each item of improvement, and stated the value thereof, representing that it would be inequitable and unjust for the plaintiff to deprive him of said land. On March 2, 1897, plaintiffs filed their supplemental petition, containing, first, exceptions to defendant's fourth amended original answer, reciting that such agreements were not in writing, and were void under the statute of frauds, and that the allegations in said answer were uncertain, obscure, and insufficient in every particular; and, second, setting up what defendant claims to have been the original contract between George Bondies and defendant T. F. Ivey, and alleging, in substance, that it was not a contract of sale, and that defendant Ivey had repeatedly recognized, admitted, and acknowledged that George Bondies was the owner of said land, and setting up and pleading the statutes of limitation of two, four, and ten years. March 3, 1897, the case was tried by a jury, and a verdict rendered in favor of plaintiffs, and judgment entered in accordance with the verdict, from which judgment the defendants have appealed to this court. This is the third appeal, and the merits of the case may be fully appreciated by reference to the reports of the former appeals. See 31 S. W. 244, and 39 S. W. 157.

Conclusions of Fact.

(1) Plaintiffs proved a regular chain of title from the state of Texas down to George Bondies. (2) That George Bondies died in Galveston county, Tex., July 7, 1894, leaving a will, which was duly probated, and in which George B. Bondies and Lucian Minor were named as independent executors, without bond, and that they had duly qualified...