Leonard v. Cleburne Roller Mills Co.

• Decision Date: 24 December 1920
• Docket Number: (No. 9228.)
• Citation: 229 S.W. 605
• Parties: LEONARD et al. v. CLEBURNE ROLLER MILLS CO.
• Court: Texas Court of Appeals

Page 605

229 S.W. 605

LEONARD et al. v.CLEBURNE ROLLER MILLS CO.

(No. 9228.)

Court of Civil Appeals of Texas. Fort Worth.

December 24, 1920.

Rehearing Denied January 22, 1921.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

Action by the Cleburne Roller Mills Company against Arthur Leonard and another.Judgment for plaintiff, and defendants appeal.Reversed and remanded.

J. M. Moore, of Cleburne, for appellants.

J. L. Lockett, Jr., of Fort Worth, and H. P. Brown, of Cleburne, for appellee.

DUNKLIN, J.

Arthur Leonard and wife, Mrs. Mary Leonard, have appealed from a judgment in favor of the Cleburne Roller Mills Company for title and possession to a house and lot situated in the town of Cleburne.

The plaintiff claimed title under a regular chain of conveyances from George Anderson, John Anderson, and J. A. Anderson, composing the partnership firm of Anderson Bros., who were engaged in running a flour mill in the town of Cleburne, under the firm name of Anderson Bros. Roller Mills Company, for a long period of time, beginning in the year 1885 and extending up to May 25, 1917, and who acquired the property, together with the remainder of the block on which the mill was erected, September 1, 1886.

On May 21, 1902, in a suit in the district court of Johnson county, in which J. A. Anderson and the heirs of George Anderson and John Anderson, deceased, were parties, block No. 4 in the town of Cleburne was decreed to be vested in J. A. Anderson, George Robert Anderson, and Mrs. Elizabeth Anderson, who, later by deed dated June 17, 1912, conveyed all of said property to the Anderson Bros. Roller Mills Company, a private corporation.By deed, dated May 25, 1917, that corporation conveyed the same property to Pool, Gresham, and Nail, who, on June 12, 1917, conveyed it to the Cleburne Roller Mills Company, plaintiff in this case, all of which deeds were duly acknowledged and filed for record in the deed records of Johnson county.The property covered by the conveyances mentioned above included the flour mill and a block of ground upon which the same had been built in the town of Cleburne.The property in controversy in this suit consisted of a lot 80x117½ feet out of the southeast corner of the block upon which the mill was erected.Upon this lot there was built a small residence for the accommodation of the engineer and fireman employed in the mill.

In the year 1888, Arthur Leonard and his wife, Mary, were living in Canada.Mary Leonard was the sister of John and George Anderson, of the firm of Anderson Bros., and J. A. Anderson, the other member of that firm, was the nephew of Mrs. Leonard.Arthur Leonard went from his home in Canada to Cleburne and was there employed for a short time as fireman and engineer in the mill.He then returned to Canada, and after he had returned, his wife received a letter from her brotherJohn Anderson, proposing to give her a home in Cleburne if she and her husband would move to Cleburne and if her husband would work in the capacity of engineer and fireman at the mill.The Leonards decided to accept that proposition, and accordingly moved to Cleburne, where they were installed in the house and lot belonging to the firm and situated in one corner of the mill block, as stated above.Arthur Leonard immediately went to work as engineer and fireman at a salary of $40 per month and held that position until the firm sold out in the year 1917.

Upon the trial of the suit, the claim was made by the defendants that Mrs. Leonard had acquired title to the property in controversy by gift from her brotherJohn Anderson.No contention was made that John Anderson or any one else ever executed any written conveyance of the property, but the claim was made that it was a parol gift from John Anderson, and that acting upon that gift the defendants had made valuable and permanent improvements upon the property.

The defendants also claimed title under the statute of limitation of ten years; the defendants alleging that they had been in peaceable and adverse possession of the property, cultivating, using, and enjoying the same, for more than 25 years next preceding the filing of the suit.

Upon the conclusion of the evidence introduced upon the trial of the suit, the court peremptorily instructed a verdict in favor of the plaintiff, and complaint of that instruction is made by different assignments of error.

It is contended that the evidence introduced by the defendants was sufficient, prima facie, to establish a parol gift by John Anderson, representing his firm, and that pursuant to that gift he placed the defendants in possession of the property, and that thereafter defendants made valuable and permanent improvements thereon.Mrs. Leonard and her husband both testified that they gave up their home in Canada and moved to Cleburne at the special instance and request of John Anderson, who promised that if they would do so and Arthur Leonard would work at the mill as fireman and engineer, as he had theretofore worked, he would give them a home; that upon their arrival in Cleburne John Anderson placed them in possession of the property in controversy, telling Mrs. Leonard at the time that that was her home; that they went into possession of the property and held the same up to the time of the institution of this suit in August, 1917, a period of about 30 years; that during said possession they made improvements on the property the nature of which will be hereinafter noted in quotations from their testimony given on the witness stand.Two other witnesses were introduced who testified to statements of John Anderson to the effect that he had given the property to Mrs. Leonard for her home.Mrs. Leonard further testified that during the time they lived in the home her brotherJohn Anderson made improvements upon the property by adding two rooms to the house and also painted the house once, and for several years lived in the house with the defendants and paid them board at the rate of $12 per month.Prior to the addition of these two rooms, the house consisted of only three rooms.She testified that when John Anderson placed them in possession of the house he said to her, "Well, here is your home, Mary."She further testified as follows:

"After we moved into this house and on this property, we made some little improvements on it.There was a cow shed built and some fencing built around the lot, and some papering and painting and things like that.I think Uncle John Anderson painted the outside of the house one time.The other repairs were kept up by my husband, such repairs as were kept up.Mr. John Anderson came and lived down there with us about the time he had his divorce suit, and I think he lived there with us about seven years before he died.He came to live with me before the divorce suit was tried but after it was brought, and remained there after that until his death.I think he died about 1909, or 1910.He died there in my home.I looked after him during his sickness.He was about 77 years old when he died.John Anderson always referred to the house as mine and called it my home.* * * Outside of the two rooms testified about, of course, there was some painting and papering done at times and some repairs made that the house needed occasionally.We put these repairs there.My brother John did buy the paint.Then there was some improvement in the way of the building of a cow shed.We paid for that.There were other repairs like fixing window lights and flues and things like that that we did.There was a cow shed built there right away after we came there.This shed was just a little shed built of lumber.There may be some of that shed there yet.I expect it is.My husband built that shed and paid for it.We made what improvements there were with reference to the shed.* * * We did a lot of little repairs on the house from time to time.Flues would burn out—these metal flues—and we would have to replace them.* * * I could not state to the court and jury the value of the improvements we put on that place during the 35 years that we lived there.These little things that we did counts up; I suppose during that time we paid out about $200."

Arthur Leonard testified as follows with reference to the improvements which he claimed to have made:

"Since we have been in possession of this place or lived on it, I have kept the place fixed up as it gave way.I have built a couple of cow sheds since I have been on the place and painted the house outside and did some papering and patching up the porches and fixing of flues, window lights, steps, fences, and things like that.* * * As stated, I did only such repairs as were needed on the house as we went along; I did not keep track of every little item.We spent a couple of hundred dollars or more, I should judge, while we lived there in the way of repairs, etc. * * * The improvements I made there were the little cow shed and fixing flues and putting in panes of glass and little repairs like that, just fixing up what was needed to keep the place in repair, and I did not keep track of it, but presume we spent as much as $200 in that way during the time we lived there."

The defendants both testified...