Lassiter v. Bouche

• Decision Date: 13 June 1931
• Docket Number: No. 10834.,10834.
• Citation: 41 S.W.2d 88
• Parties: LASSITER v. BOUCHE et al.
• Court: Texas Court of Appeals

41 S.W.2d 88

LASSITER v. BOUCHE et al.

No. 10834.

Court of Civil Appeals of Texas. Dallas.

June 13, 1931.

Rehearing Denied July 11, 1931.

Appeal from District Court, Dallas County; Claude M. McCollen, Judge.

Action by Mrs. M. W. Lassiter against Jennie L. Bouche and another. From a judgment for defendants, plaintiff appeals.

Affirmed.

See, also, 5 S.W.(2d) 831, 14 S.W.(2d) 808.

W. N. Coombes and White & Yarborough, all of Dallas, for appellant.

Locke, Locke, Stroud & Randolph, of Dallas, for appellees.

JONES, C. J.

This suit was instituted October 23, 1924, by Mrs. M. W. Lassiter, appellant, against appellees, Mrs. Jennie L. Bouche and Julius Edmund Bouche, to establish a parol trust in an undivided one-half interest in real estate located in the city of Dallas. The case was tried to a jury and resulted in a verdict in favor of appellees, and judgment was entered in accordance with the verdict. The appeal is duly perfected. The facts essential to an understanding of the issues discussed are:

In 1879, Elisha H. Kendall, the grandfather of appellant, died intestate, leaving his wife, Mrs. Julia Kendall, and three children, appellee Jennie L. Bouche, C. P. Kendall, and Mrs. Mollie E. Wright, mother of appellant. The land was community property, and the ownership thereto, on decedent's death, vested one-half in the surviving wife, Mrs. Julia Kendall, and one-sixth in each of the children. On April 23, 1883, Mrs. Wright, joined by her husband, J. W. Wright, parents of appellant, by general warranty deed, conveyed, to C. P. Kendall and appellee Jennie L. Bouche, Mrs. Wright's interest in the property in controversy, together with other property, for a consideration of $1,250 cash and the conveyance to Mrs. Wright of 160 acres of land situated in Marion county, Tex. The recited cash consideration was paid and the deed of conveyance of the Marion county land duly executed and delivered to Mrs. Wright. The title to the property in controversy then became vested, an undivided one-half interest in Mrs. Julia Kendall, an undivided one-fourth interest in appellee Mrs. Jennie L. Bouche, and an undivided one-fourth interest in C. P. Kendall.

C. P. Kendall died testate January 10, 1895, and Mrs. Julia Kendall died testate in September, 1896; the will of each was duly probated and their respective estates vested under the respective terms of their wills. After the death of C. P. Kendall and Mrs. Julia Kendall, the land in suit was owned, a onehalf interest in Mrs. Bouche; this interest is composed of the one-sixth interest inherited from her father, the one-twelfth interest acquired by deed from the Wrights, and a one-fourth interest acquired through the will of Mrs. Julia Kendall; the other one-half interest was owned by appellee Julius Edmund Bouche and is composed of a one-fourth interest acquired through the will of C. P. Kendall and a one-fourth interest acquired through the will of Mrs. Julia Kendall.

It is the contention of appellant that there was no consideration passed to her mother, Mrs. Wright, for the execution of the deed of April 23, 1883; that the deed was executed for the sole purpose of protecting Mrs. Kendall and her son, C. P. Kendall, an incurable invalid, in the use and occupancy of the land as a home during their lives, with the oral agreement that, at their deaths, it would be partitioned between Mrs. Wright and appellee Mrs. Bouche without reference to the deed. Appellant testified that, shortly after the death of Mrs. Julia Kendall, she heard a conversation between her mother, Mrs. Wright, and her aunt, Mrs. Bouche, in which her mother reminded Mrs. Bouche of such agreement, and also in which her mother stated that she would contest the wills of C. P. Kendall and Mrs. Julia Kendall, unless Mrs. Bouche would recognize the agreement and would consent to a partition of the property, as provided for in the agreement. Appellant further testified that Mrs. Bouche acknowledged the agreement and consented to the contention of her mother, and promised that the property should be so partitioned; that an agreement was entered into by which the husband of Mrs. Bouche should rent the property until it should be sold, and that, after taxes and expenses of upkeep were paid, one-half of the net profits of the rent would be remitted to her mother until the property could be sold; that her mother received rent under this agreement up until the time of her death; that during her mother's lifetime she executed to appellant a deed of conveyance of her interest in the land, and that in 1923 she came to Dallas and demanded of Mrs. Bouche a partition of the property under the agreement, but that appellee denied the existence of such an agreement, denied the admission made on the occasion, just after the death of Mrs. Kendall, and this suit was then instituted.

This is the second appeal of this case; on the first appeal this court affirmed the judgment in favor of appellees, peremptory instruction having been given in their favor by the trial court. A writ of error was granted, and the Supreme Court, through an opinion of the Commission of Appeals, affirmed the judgment in so far as it affected the interest of appellee Julius Edmund Bouche, but reversed and remanded the case in so far as it affected the interest of Mrs. Bouche, acquired by the deed from the Wrights in 1883. The effect of the judgment entered by the Commission of Appeals is to confirm title in Julius Edmund Bouche of a one-half interest in the land in controversy, and to confirm in Mrs. Bouche her interest in the land, except a one-twelfth interest she asserts she acquired by the 1883 deed, and to reverse the cause for a trial on the merits as to the ownership of this one-twelfth interest in the land, the Supreme Court's holding being to the effect that the evidence of appellant as to the oral trust agreement did not come under the inhibitions of ...