Nichols v. Nichols

• Decision Date: 17 September 1942
• Docket Number: No. 4240.,4240.
• Parties: NICHOLS v. NICHOLS.
• Court: Texas Court of Appeals

170 S.W.2d 558

NICHOLS v. NICHOLS.

No. 4240.

Court of Civil Appeals of Texas. El Paso.

September 17, 1942.

Rehearing Denied November 19, 1942.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Action of trespass to try title by Mattie Nichols, a feme sole, against C. E. Nichols. From judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

F. C. Knollenberg and Theodore Andress, both of El Paso (John F. Hawley, of El Paso, on the brief), for appellant.

Cunningham, Ward & Cunningham, of El Paso, for appellee.

McGILL, Commissioner.

This is an appeal from a judgment of the District Court of El Paso County, Sixty-fifth Judicial District. Appellee, Mattie Nichols, was plaintiff in the trial court and appellant, C. E. Nichols, was defendant. The parties will be designated here as there.

The action was in the statutory form of trespass to try title to Lot 51 and the West 15 feet of Lot 50, in Block 39, of Altura Park Addition to the City of El Paso. Plaintiff also specially pleaded that the property had been acquired through a trade of a ten-acre tract of land located near the town of San Benito, Texas, which was the community property of plaintiff and her deceased husband, V. T. Nichols; that in order to clear this 10-acre tract so that the trade could be consummated, she and her deceased husband had conveyed to defendant, who was the son of her deceased husband by a former marriage, a 24-acre tract of land south of the town of San Benito, which was the homestead of her and her deceased husband, for the purpose of borrowing $600 with which to clear the 10-acre tract; that this conveyance was without consideration; that the title to the El Paso property was taken in the name of defendant for the use and benefit of her and her deceased husband, V. T. Nichols. She also alleged that on December 13, 1930, she had married the defendant in good faith, and had lived on the El Paso property before and since such marriage and her earnings had been applied to payment of an indebtedness of $1,200, for which defendant had executed a deed of trust against the property; that such marriage was annulled on July 16, 1940; that in January, 1937, defendant left El Paso and at that time agreed with her that he would take the 24-acre tract near San Benito and she should take the El Paso property for her own use and benefit; that, relying on such parol sale or gift, she went into possession of such property and made substantial permanent improvements thereon. She prayed for title and possession and in the alternative that she be awarded a division of community property, or that a lien be fixed upon said property and any property which defendant owned, to protect her in the future. Defendant answered by various special exceptions, special denials, plea of not guilty, and specially pleaded the statute of frauds, Art. 3995, R.C.S. In response to special issues submitted the jury found in substance: (1) That in January, 1937, defendant made a gift of the property to plaintiff with the intention that it should be her separate property from then on; (2) plaintiff kept possession of said premises from then on and claimed same as her separate property, and not as tenant or permittee of defendant; (3) that, relying on such gift, she made valuable and substantial improvements to the premises from her own funds, other than the rents collected from the premises; (4) that such improvements were of substantial character and enhanced the value of the property; also that, in reliance on said gift, she made payments for taxes or upon the lien on the premises from her own separate funds other than the rents collected from the premises. Defendant's motions for an instructed verdict and for judgment non obstante veredicto were overruled by the court and judgment rendered on the verdict awarding plaintiff title and possession of the property. Defendant has perfected his appeal by affidavit in lieu of bond.

The controlling question presented by this appeal is whether the evidence was sufficient to support the jury's finding. It is not contended—nor can it properly be contended—that the special issues did not present the question of a parol gift, possession and substantial improvements in reliance thereon, as favorably for defendant as the law requires. In fact, they placed a burden on plaintiff which was not required of her. It was not necessary that she should show payment for taxes or on the lien against the property from her separate funds, or that the improvements were paid from her separate funds other than the rents collected from the property in question. All she was required to show was (1) a present gift to her by defendant; (2) possession under the gift, taken and held by her with the consent of the defendant; and (3) permanent and valuable improvements made on the premises by her, in reliance upon the gift, with the consent or knowledge of the defendant. Davis v. Douglas, Tex.Com.App., 15 S.W. 2d 232; 21 Tex.Jur. p. 36, § 16, and cases cited.

Since Wells v. Davis, 77 Tex. 637, 14 S.W. 237, and Davis v. Douglas, supra, it can no longer be said that the fact that the rental value of the property, the subject of the gift, equals or exceeds the value of the improvements or that the value of improvements does not bear a reasonable proportion to the value of the land, is controlling. The settled rule is that the improvements must be substantial, but there is no fixed criterion or minimum value as a matter of law. 21 Tex.Jur. p. 40, § 18, footnote 3.

We must view the testimony in the light most favorable to the verdict. Lehman v. Barry, Tex.Civ.App., 126 S.W. 2d 499, writ dismissed. When so viewed, we think the evidence was ample to support the material findings of the jury. It would serve no useful purpose to detail it all in full. Suffice it to say that on the issue of a present gift of the property in question in January, 1937, plaintiff testified that there was such a gift to her by defendant; that she and defendant talked about their marriage not being lawful and that he said he would take the 24-acre tract and that she should take the El Paso property and that if she would "pay it out * * *, principal, interest, insurance and taxes, you and the children can have that and I will take the 24 acres down there, there is no use in our trying to live together." The substance of this conversation was corroborated by the testimony of Mrs. E. B. Wiggins, plaintiff's daughter, who testified that she and her husband lived with defendant...