Rosek v. Kotzur

• Decision Date: 19 November 1924
• Docket Number: (No. 7223.)
• Citation: 267 S.W. 759
• Parties: ROSEK v. KOTZUR et ux.
• Court: Texas Court of Appeals

267 S.W. 759

ROSEK v. KOTZUR et ux.

(No. 7223.)

Court of Civil Appeals of Texas. San Antonio.

November 19, 1924.

Rehearing Denied January 7, 1925.

Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Action in trespass to try title by John Kotzur and wife against Adam Rosek. Judgment for plaintiffs, and defendant appeals. Affirmed.

Warren W. Moore and Fred W. Moore, both of Austin, for appellant.

Saunders & Whipple and Arnold & Cozby, all of San Antonio, for appellees.

COBBS, J.

Annie Kotzur and her husband, John Kotzur, appellees herein and plaintiffs in the court below, brought this action in trespass to try title against this appellant, Adam Rosek, defendant in the court below, for the recovery of a certain tract of land, more particularly described in their petition, known as the Maggot farm, situated in Bexar county, Tex., praying the court to award them said land and that their title be cleared of any clouds created by assertions of title by this appellant. It was alleged in said appellees' petition that appellant held title to said land by virtue of a deed from C. O. Maggot and Eloise Maggot, dated November 26, 1915, duly recorded in the deed records of Bexar county, Tex., and that at the time of said purchase this appellant gave said appellee Annie Kotzur, his daughter, the above-described property; it being alleged that it was a parol gift and in præsenti, and that appellees moved on the land and made improvements of the value of $4,000. Appellees also stated in said petition that —

"Said gift was made verbally by the defendant to his daughter, unconditionally, and the said plaintiffs agreed and stated that when the defendant should become old and incapacitated for work, that the plaintiffs would take care of him in his old age."

Appellant answered with a plea of not guilty and generally demurred, further pleading that the agreement as alleged by appellees showed on its face that no consideration moved from plaintiffs to defendant, that it was in violation of the statute of frauds, that appellant made no gift but made a verbal rental agreement with appellees, renting said property to them at $100 per year, they agreeing to cultivate and improve same, and later, on November 20, 1919, that he entered into another oral contract with appellees whereby they agreed to pay him $400 per year, without improvements, which last contract he alleged was renewed for each November of the years following, to wit, 1920, 1921, and 1922. He averred that he made demands on appellees for said rentals, but none were paid; by reason whereof he claimed appellees owed him some $1,900, which it was stated exceeded the value of all improvements made by appellees by some $400. It was shown that appellees were occupying said land at the time suit was filed, and in concluding his answer appellant asked by way of cross-action that he be given damages for the unlawful detention of said property by appellees, together with said sum of $400. and possession and title to said property. He alleged same to be worth approximately $15,000.

The cause was submitted on special issues, only one interrogatory being propounded to the jury, which read substantially as follows:

"Question No. 1. Did the defendant, Adam Rosek, on or about November 26, 1915, verbally give the Maggot farm to his daughter, Annie Kotzur? Answer yes or no."

The jury answered said question, "Yes."

Appellant filed a motion for judgment, which was overruled by the court, he reserving his exception, and, upon judgment being rendered for appellees as prayed for by them, filed a motion to set aside the verdict and grant him a new trial, which was also overruled; appellant duly reserving his exception thereto and giving notice of appeal to the Court of Civil Appeals, Fourth Supreme Judicial District at San Antonio, Bexar county, Tex. Said appeal was perfected by the filing of a supersedeas appeal bond by appellant on January 31, 1924; and he now asks that this cause be reversed because of errors committed by the lower court in the trial thereof, and because of insufficiency of the evidence, and that it be rendered against said appellees or remanded for further trial, as this court shall see fit.

There were no exceptions to the pleadings presented; no bills of exception whatever were taken to any matter during the entire trial. Only one issue was submitted to the jury, and no requests for additional or special issues were presented by appellant. Hence, as provided by article 1985, R. S., every issue of fact not submitted to the jury must be resolved in favor of appellees. Texas Electric Ry. Co. v. Barton (Tex. Civ. App.) 213 S. W. 689; Gonzales v. Flores (Tex. Civ. App.) 200 S. W. 851; Fort Worth Ry. Co. v. Miller (Tex. Civ. App.) 201 S. W. 1049. Keeping in mind these well-established rules, we will dispose of the assignments and propositions in a general discussion of the entire case, bearing in mind that appellant denies there was a parol gift of the land to appellant's daughter, Mrs. Annie Kotzur, the wife of John Kotzur, appellee herein. Appellant only assigns error and presents propositions on the one single issue submitted to the jury, and says that the verdict and judgment predicated thereon are not supported by the evidence; for the reason that the evidence conclusively showed that, if there was a gift, it was not in præsenti and was not such a gift as that specially pleaded by appellees, there being no immediate delivery as appellees alleged.

In applying the facts to the verdict of the jury in this case, they fully support the finding that it was a present parol gift of the land, accompanied with possession, upon which appellees made valuable permanent improvements. The proof shows that appellant bought the land on the 26th day of November, 1915, and gave the same to his daughter the next day, and appellees moved on and took possession of the place December 23, 1915, being about 27 days after the alleged gift. They lived on the land continuously thereafter, claiming to own it, which was well known to appellant, and occupied, cultivated, and made valuable improvements on the land, on a claim of right, until dispossessed thereof through the means of sequestration proceedings instituted on February 5, 1923, by appellant. Therefore they remained in possession, using, occupying, and claiming it as the property of Mrs. Annie Kotzur, and making valuable and extensive improvements for an undisturbed period of over seven years.

At the time of the gift to his daughter, appellant resided in California, from where he came to Texas to buy the land for his daughter, and after purchasing same returned to California to live. Appellant had previously indicated to his daughter his desire to help her financially, and made an offer to either give her $3,000 in money or buy her a farm. And the testimony shows that the appellee Annie Kotzur is the appellant's only child, and that when she was a mere baby the appellant and his wife separated and the appellant moved to California; the mother retaining the child. The testimony shows that the father did not become acquainted with his daughter until she married in 1911, and then he became acquainted with her and formed an affection for her, and evidently was filled with a desire to help her. At the time of her marriage in 1911, he offered her either $3,000 in cash, or if she would wait a few years he said he would give her a farm. She elected to wait, and the testimony shows that the idea of buying the farm was kept alive and was written about from 1911 until 1915, when, in response to a letter from John Kotzur that he had found a place that would suit, the appellant came to Texas and inspected the place, but was not entirely satisfied with it, and then the son-in-law and appellant looked for another place, and finally found the farm which is the subject-matter of this litigation.

Mr. Kotzur testified that in 1911, when he married, the appellant, Mr. Rosek, suggested the idea...