Lassiter v. Bouche

• Decision Date: 20 March 1929
• Docket Number: (No. 1202-5210.)
• Citation: 14 S.W.2d 808
• Parties: LASSITER v. BOUCHE et al.
• Court: Texas Supreme Court

14 S.W.2d 808

LASSITER v. BOUCHE et al.

(No. 1202-5210.)

Commission of Appeals of Texas, Section A.

March 20, 1929.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Mrs. N. W. Lassiter against Mrs. Jennie L. Bouche and another. Judgment for defendants was affirmed by the Court of Civil Appeals , and plaintiff brings error. Judgments of both courts reformed and affirmed in part, and in part reversed and remanded for a new trial.

John White and W. N. Coombes, both of Dallas, for plaintiff in error.

Locke, Locke, Stroud & Randolph, of Dallas, for defendants in error.

CRITZ, J.

Mrs. M. W. Lassiter filed this suit in the district court of Dallas county against Mrs. Jennie L. Bouche and Julius Edmond Bouche, to establish an express trust on a certain lot in the city of Dallas, and based the existence of the trust asserted on a one-half interest in the lot. At the conclusion of Mrs. Lassiter's evidence the trial court peremptorily instructed a verdict for the defendants, and judgment was rendered accordingly. The case was duly appealed to the Court of Civil Appeals at Dallas, which court affirmed the judgment of the district court, 5 S.W.(2d) 831. The case is now before this court on writ of error granted on application of Mrs. Lassiter.

The Court of Civil Appeals makes a very clear and complete statement of the issues involved, and for the sake of brevity we refer to the statement of that court. We, however, copy the following from the opinion of the Court of Civil Appeals:

"Thus it will be seen that the legal title to the lot in question at the time of the death of Julia Kendall in 1896 stood one-half in Mrs. Jennie Bouche, made up as follows: One-sixth inherited from her father; one-twelfth conveyed to her by her sister, Mollie Wright and husband in 1883; and one-fourth acquired through the will of her mother. The legal title to the other half of the lot was in Julius Edmond Bouche, made up of the one-fourth acquired under the will of his uncle, C. P. Kendall, and one-fourth under the will of his grandmother. This was the status of the legal title at the time this suit was instituted on October 23, 1924."

We are in accord with the holding of the Court of Civil Appeals, as to all of the issues of this case, except so far as the asserted trust may, or may not, exist as to the one-twelfth interest in the lot conveyed to Mrs Bouche by Mollie E. Wright and husband, J. W. Wright, by deed dated April 23, 1883, and we are in accord with the holding of the Court of Civil Appeals as to this one-twelfth interest, in so far as said court holds that if Mrs. Lassiter is competent to testify, the trial court erred in directing a verdict for defendants; but we are of the opinion that the Court of Civil Appeals erred in holding Mrs. Lassiter was incompetent to testify under the provisions of article 3716, R. C. S. of Texas, 1925.

In this connection it will be noted that Mrs. Lassiter proposed to prove the parol trust by herself testifying to statements and transactions by and between Mrs. Mollie E. Wright, deceased, mother of Mrs. Lassiter, and Mrs. Bouche, who is still living, and is a party to this suit. It is shown that such statements and transactions took place before the death of Mrs. Wright. If Mrs. Lassiter is competent to testify, her testimony, together with other circumstances in the record, presents a fact issue as to the one-twelfth interest. On the other hand, if Mrs. Lassiter is not competent to testify as a witness, the trial court was correct in directing a verdict and entering judgment for defendant, Mrs. Bouche, and the Court of Civil Appeals was correct in affirming that judgment.

As stated, Mrs. Lassiter is a daughter, and, generally speaking, one of the heirs at law, of Mrs. Mollie E. Wright, deceased; but, as shown, she does not bring this suit as an heir of her deceased mother, nor does she assert any rights or title in the lot in question by virtue of heirship. On the other hand, Mrs. Lassiter asserts title in the lot by virtue of a deed from Mrs. Mollie E. Wright to her. We do not think that, where title is thus asserted, the provisions of article 3716, R. C. S. of Texas 1925, have any application to disqualify Mrs. Lassiter as a witness to testify to transactions or communications by and between Mrs. Wright, deceased, and Mrs. Bouche, still living. Newton v. Newton, 77 Tex. 508, 14 S. W. 157.

In Newton v. Newton, supra, it is shown that the cause of action was based on a note executed by appellants to their father, James Newton....