Massey v. Lewis

• Decision Date: 09 June 1955
• Docket Number: No. 6798,6798
• Citation: 281 S.W.2d 471
• Parties: Ed MASSEY et al., Appellants, v. E. B. LEWIS et al., Appellees.
• Court: Texas Court of Appeals

Page 471

281 S.W.2d 471

Ed MASSEY et al., Appellants, v. E. B. LEWIS et al., Appellees.

No. 6798.

Court of Civil Appeals of Texas, Texarkana.

June 9, 1955.

Rehearing Denied July 7, 1955.

Cornelius & Cornelius, Jefferson, Jas. R. Cornelius, Jr., Lufkin, for appellants.

Vinson, Elkins, Weems & Searls, Thomas Fletcher, J. W. McCartney, Houston, E. B. Lewis, Jacksonville, for appellees.

HALL, Chief Justice.

This is an action by appellants Ed Massey and wife, Angie Massey, J. R. Cornelius, Sr., and J. R. Cornelius, Jr., against Union Producing Company and E. B. Lewis, appellees, to recover an undivided 50/98 interest in a 60-acre tract of land, a part of the Stephen Jarboe Survey located in Cherokee County, consisting of 1/98 undivided interest inherited by appellant Ed Massey from his grandmother, Elizabeth Swindell, and 49/98 undivided interest claimed by appellants under a parol sale or gift from B. P. Swindell.

This action is one in trespass to try title to 1/2 undivided interest in the above land, appellants alleging oral sale or gift of said interest, and title under the 10-year statute of limitation. Vernon's Ann.Civ.St. art. 5510.

The appellee Union Producing Company answered with plea of not guilty and as a bar to appellants' cause of action, the 3-, 5-, 10- and 25-year statutes of limitation, estoppel, and the 4-year statute of limitation. Appellee E. B. Lewis' answer was similar to that of the Union Producing Company.

Trial was to a jury on special issues. At the close of appellants' testimony appellees made motion for instructed verdict which was overruled, and at the close of all the testimony appellees made another motion for instructed verdict which was also overruled. Appellants also moved for an instructed verdict. The case was given to the jury and after a day and a half of deliberation, the jury being unable to agree on a verdict, the trial court, on motion of appellees, withdrew the case from the jury and rendered judgment for appellees for title and possession of the land in controversy.

Appellants bring forward 31 points, the first five of which complain of the action of the trial court in withdrawing the case from the jury and entering judgment for appellees. Appellants assert this was error because there were disputed issues of fact to be determined by the jury.

The 60-acre tract of land involved herein constituted the community estate of B. P. Swindell and his wife, Elizabeth Dew Swindell. Appellant Ed Massey and Jessie Mae Brittian each inherited a portion of the community estate as heirs of Elizabeth Swindell, their grandmother, each inheriting a 1/98 interest of the property in controversy. In addition to the 1/98 interest inherited by Jessie Mae Brittian, she also claims by deed from B. P. Swindell, her step-grandfather, to a 1/2 undivided interest in the 60-acre tract. Both of these interests she conveyed to appellee E. B. Lewis, and Union Producing Company now holds an oil and gas lease covering the above interests as well as other interests in the 60-acre tract.

Appellants Ed Massey and wife claim, first, their grandfather B. P. Swindell's undivided 1/2 interest in the land under a parol sale or gift from B. P. Swindell; and, second, under the 10-year statute of limitation. Appellant Ed Massey testified that his grandfather, B. P. Swindell, came to see him and asked him and his wife to move to his home to take care of him in his old age. Massey was living about 3/4 of a mile from the Swindell homestead. Massey testified that his grandfather told him that if he would move over there 'He'd give me his place,' the land in controversy here. Appellant Massey also testified that 'He (B. P. Swindell) said, 'If you will move over there you can have my part if you take care of me. '' He testified that he went to his grandfather's home and took care of him for about a year and a half, living in the house with him. That toward the end of this time he requested his grandfather to move away for a time while his wife was to be delivered of a child. This Swindell did.

Shortly thereafter, B. P. Swindell, being in need of medical treatment, went to Jacksonville to the home of his step-granddaughter, Jessie Mae Brittian. He remained within the home of Jessie Mae and her husband, with the exception of three days, until he was carried to the Texas Confederate Home in Austin where he died in 1931. While living with Jessie Mae in Jacksonville, he executed and delivered to her a deed covering his interest in the 60 acres. This deed is strongly contested by appellants as being void for want of description and it will be discussed herein later in detail. While B. P. Swindell was at Mrs. Brittian's home in Jacksonville, she went to his old home where appellants were living, got his trunk, bed, and his deed to the property. After Mr. Swindell went to the Old Soldiers' Home, he never returned.

Appellant Angie Massey, wife of Ed Massey, testified in respect to the parol gift or sale of the land to them by B. P. Swindell, that 'He asked us would we go over and stay with him. He said if we would, he would make it out home, that would be our home because he said that he had to have somebody with him and he would like for us to stay with him and then that would be our home * * *.'

A Mr. John Jolly, a witness for appellants, testified to hearing a conversation between B. P. Swindell and the Massers with respect to moving on his place. He stated: 'He told them that if they would move in the house with him and take care of him, he would leave them his part of the place.'

The Masseys claimed that they made the following improvements on the place: Repaired and rebuilt the old barn, cleared about five acres of land, cut posts off the land, repaired the fences around the place, and built cross-fences on the place for cattle. There is no evidence in the record that the Masseys ever paid any taxes on the property during the entire time they lived there.

The above testimony is the basis for appellants' claim of parol sale or gift of the land to them by B. P. Swindell. It is without dispute that Massey was the owner of a 1/98 inherited interest in the property from his grandmother, Elizabeth Swindell. His claim of a gift or sale by Swindell must be determined by the above facts. The consideration for the alleged parol sale or gift of the land was the promise of Ed Massey and wife to live with and take care of B. P. Swindell as long as he lived. There is no contention that they carried out this oral contract. It is without dispute that B. P. Swindell lived with appellants in his own home for about a year and a half. He left and went to Jacksonville and stayed in the home of his step-granddaughter, Jessie Mae Brittian, during which time he made a deed conveying to her the land in controversy. Shortly after this time Swindell was taken to the Texas Confederate Home in Austin where he lived continuously until 1931, the date of his death. In our opinion, the possession of Ed Massey and wife was not exclusive for the reason that B. P. Swindell, the owner of the property, was living with them (or they with him). It is our opinion that the evidence does not show an oral gift or sale of the land by Swindell to the Masseys in praesenti.

In the case of Hauser v. Zook, Tex.Civ.App., 278 S.W. 518, it is held that the statements by the donor that, "'Stay with me, take care of me, and the place is yours"', and "'Do what you want, the property is yours,"' were not sufficient as a present gift. With respect to these statements the court said:

'It may be, and the testimony shows, that the owners desired to give the property to appellants, but they did not do so prior to their death, and we are not permitted to execute such a deed for them. It was a mere conditional, verbal promise to convey land in futuro, such as is condemned by the statute of frauds, and therefore nonenforceable.' Citing cases.

There were other statements and circumstances in that case that differ from the facts here, but the statements made by the donors are similar to the statements here. Moreover, appellants' position was consistent with his co-tenancy in the property. Especially is this true since they lived in the house with B. P. Swindell.

In Leverett v. Leverett, 59 S.W.2d 252, 255, w/r, Chief Justice Johnson of this Court, in discussing a situation somewhat similar to that here, states:

'The possession of H. P. Leverett was then consistent with his right of cotenancy with C. C. Leverett and there could be no such surrender of possession by C. C. Leverett as would constitute a visible and affirmative corroboration of the contention of the existence of the contract (parol sale), inconsistent with H. P. Leverett's right as such cotenant. For this reason the verbal contract depended wholly for its proof upon parol testimony and cannot be enforced.' Citing cases.

So, here, appellants' possession of the property would not bring notice to their co-tenants of any claim by appellants other than as a co-tenant. Certainly the most that can be said of the testimony in this case with reference to parol sale or gift of the one-half undivided interest in the 60-acre tract of land is that it was based upon a consideration that appellants would take care of B. P. Swindell so long as he lived, and there is no hint that they did this, but, on the contrary, they performed that service for about a year and a half, leaving the remaining 4 1/2 years of Mr. Swindell's care to the State of Texas.

In Emporia Lumber Co. v. Tucker, 103 Tex. 547, 131 S.W. 408, 409, dealing with somewhat different state of facts than here, the court makes this very pertinent statement: 'To restate our conclusion, it is that, if the contract was a parol sale (as here) then the consideration, not having been performed, and it not being in writing, the contract cannot be enforced, and conferred no title upon the parties who refused to perform the conditions upon which the contract...