Norwood v. Childress, 12409

• Decision Date: 25 June 1952
• Docket Number: No. 12409,12409
• Citation: 250 S.W.2d 927
• Parties: NORWOOD et ux. v. CHILDRESS.
• Court: Texas Court of Appeals

Page 927

250 S.W.2d 927

NORWOOD et ux. v. CHILDRESS.

No. 12409.

Court of Civil Appeals of Texas, San Antonio.

June 25, 1952.

Rehearing Denied Sept. 3, 1952.

Farrow & Johnson, Carrizo Springs, for appellant.

Petry & Dean, Carrizo Springs, for appellee.

W. O. MURRAY, Chief Justice.

This suit was instituted by Irene Childress, individually and as sole devisee and beneficiary under the last will and testament of Maud Childress, deceased, and as sole heir at law of H. H. Childress, deceased, against Roy O. Norwood and his wife, Charlotte Norwood, seeking specific performance of an alleged parol agreement to convey by warranty deed a house and lot in Carrizo Springs, Dimmit County, Texas, to Maud Childress and H. H. Childress.

The trial was to a jury and, in keeping with the jury's answer to the one issue submitted, judgment was rendered in favor of Irene Childress against Roy O. Norwood and wife for title and possession of the house and lot. Roy O. Norwood and wife, Charlotte Norwood, have prosecuted this appeal.

We are of the opinion that the evidence is insufficient to support the judgment rendered.

The lot involved herein was a part of the homestead of Roy Norwood and wife, and a parol agreement to convey a part of the homestead is void. Art. 1300, Vernon's Ann.Civ.Stats.

Appellee contends that the lot had been segregated from the remainder of the homestead and had therefore been abandoned as a part of the homestead. The evidence is to the contrary. The lot had been measured off as being a lot 60 feet by 100 feet. Roy Norwood had built a home for Mr. and Mrs. Childress, his stepfather and mother, upon the lot and they had moved in and occupied the house. The 60 X 100 foot lot was never physically separated by a fence or in any other way from the rest of the homestead tract. The house was on the same water meter and the same butane gas system as was the Roy Norwood home. Roy Norwood mowed the lawn and otherwise cared for and kept the land surrounding the house occupied by Mr. and Mrs. Childress. Under such circumstances there was not such an abandonment of the lot as to relieve it of its homestead character, and it could only be conveyed by a written deed joined in by the wife and showing her separate acknowledgment. Giersa v. Gray, Tex.Civ.App., 31 S.W. 231; Shook v. Shook, 21 Tex.Civ.App. 177, 50 S.W. 731; Art. 1300, supra.

Regardless of the homestead feature, this was at least a parol agreement to convey land, and to remove it from the Statute of Frauds, Art. 3995, § 4, Vernon's Ann.Civ.Stats., three things must be shown:

'1. Payment of the consideration, whether it be in money or services. 2. Possession by the vendee. And 3. The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if...