Ryan v. Lofton

• Decision Date: 21 October 1916
• Docket Number: (No. 8447.)
• Citation: 190 S.W. 752
• Parties: RYAN v. LOFTON et ux.
• Court: Texas Court of Appeals

Page 752

190 S.W. 752

RYAN v. LOFTON et ux.

(No. 8447.)

Court of Civil Appeals of Texas. Ft. Worth.

October 21, 1916.

On Motion for Rehearing, November 25, 1916.

Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.

Action by William C. Ryan against R. L. Lofton and wife. From judgment for defendants, plaintiff appeals. Affirmed.

R. W. Haynie, of Abilene, for appellant. Ben L. Cox, of Abilene, for appellees.

BUCK, J.

This is an action arising in trespass to try title, William C. Ryan, appellant, claiming title to the property in controversy by legal transfers, and R. L. Lofton and wife claiming title to the property by virtue of a parol gift from M. P. Moore. By agreement between all parties W. E. Dennis and wife were agreed upon as the common source of title; said Dennis and wife being the immediate grantors in the conveyance to M. P. Moore. From a judgment in favor of the defendants, plaintiff appeals.

In August, 1913, R. L. Lofton and his wife, Mrs. Eula Lofton, lived in Abilene, Tex. M. P. Moore purchased from Dennis the premises in controversy, and the Loftons and he moved thereon, and all occupied the house until the day before Moore's death, which occurred in May, 1914. Moore was quite old, and had lived with the Loftons for some years in Cisco prior to their removal to Abilene, Moore furnishing the house rent free, and the Loftons nursing, caring for, and boarding Moore. During a goodly portion of the time they lived together in Abilene Mr. Moore was sick and bedfast and required considerable attention. The day before he died he was moved from the Lofton residence, at the instance of the appellant herein, and apparently over the protest of the Loftons. A few days before his death Moore executed a deed to the property in question in favor of the Right Reverend Joseph Patrick Lynch, D. D., bishop of the Catholic diocese of Dallas, Tex., and his successors and assigns, reciting a consideration of $750. Subsequent to Moore's death, on, to wit, July 21, 1914, Rev. Lynch deeded the property to William C. Ryan, appellant, the consideration recited being "ten dollars and other valuable consideration."

On August 11, 1915, appellant filed suit in form of trespass to try title. Defendants answered by a plea of not guilty, and further alleged that they had acquired the title from M. P. Moore under the following circumstances, to wit: That, while the title was taken by said M. P. Moore in his own name, the same was taken for the use and benefit of the defendants and with an equitable title in these defendants; that the said M. P. Moore had been for several years prior to the date of said deed an old and decrepit man, without a family and without relatives upon whom to rely for support and maintenance; that for five years prior to the date of said deed the defendants had taken care of said Moore and had boarded him and had permitted him to room with them and had cared for him during sickness, with no remuneration therefor save and except the promise of said Moore at his death to remunerate them by leaving them what property he owned at said time; that at the time of the purchase of the property by Moore from Dennis said Moore placed defendants in possession thereof and agreed with and promised them that at his death the title to said premises should vest in the defendants, and the property should become theirs without any incumbrance or other charge thereon, with the sole condition that defendants would take care of, support, maintain, and nurse said Moore from said date of the deed during the rest of his natural life, it being understood that said premises were to become the property of the defendants at the death of said Moore in consideration of and in payment for the services of defendants in taking care of said Moore for the five years prior to the date of said deed and for the time intervening from the date of said deed to the death of said Moore; that defendants faithfully carried out their part of said agreement and did take care of and support and nurse the said Moore during the rest of his natural life and until his death in May, 1914.

Defendants alleged in another count that the value of said property was $700, and that the value of their services to the said Moore during the time they nursed and cared for him, alleged to have covered a period of some five years previous to the date of said deed and the time subsequent thereto, was of the reasonable value of $75 per month. They further alleged that while relying upon the contract and agreement alleged to have been had with said Moore prior to his death, and while in possession and control of said premises, they made valuable improvements thereon.

The court having sustained plaintiff's exception to that portion of defendants' answer setting up the promise and agreement of M. P. Moore to give the defendants the property in controversy at his death, defendants amended their answer and alleged that the agreement of said Moore and the understanding of said defendants were that the property in fact vested in said defendants at the time of the execution of the deed from Dennis to Moore, and further pleaded fulfillment of the agreement on the part of the defendants to nurse and care for said Moore, and the making of valuable and permanent improvements, etc.

The issues were sharply drawn by the evidence: First, as to the nature of the agreement or contract, if any, between Moore and the Loftons; second, as to whether any permanent or valuable improvements had been made; third, as to whether defendants had complied with the terms of the alleged contract with Moore in taking care of him during his last days.

The cause was submitted to the jury on the following special issue, to wit:

"Q. 1. At the time M. P. Moore purchased the property in controversy from W. E. Dennis and the defendant Mrs. Lofton began occupying the same did the late M. P. Moore then give such property to the said Mrs. Lofton, or did he merely promise to give the same to her at his death, or did he let Mrs. Lofton enter such property upon the understanding that she should take care of him for the rent of such property?"

To this the jury answered as follows:

"We find that the property was given to the defendant Mrs. Lofton by M. P. Moore the day M. P. Moore bought the property."

Upon this verdict the court entered a judgment in favor of the defendants on their plea of not guilty, and further decreed that all the right, title, claim, and interest of William C. Ryan in said property should be divested out of him and vested in the defendants, and that the cloud cast upon the title by virtue of the execution, delivery, and recording of the deed from Moore to Rev. Lynch, and the deed from Lynch to plaintiff, be removed, and that defendants be in all respects quieted in their title. From this judgment the plaintiff has appealed.

The trial court in sustaining plaintiff's special exception to that part of defendants' answer pleading an agreement and promise on the part of the deceased M. P. Moore to give, at his death, the property in controversy to defendants as a remuneration for their taking care of him during his lifetime, seems to have concluded that such an agreement is not sustainable, but that in order to make the parol agreement of transfer of title to real estate valid there must be: First, a promise on the part of the grantor to convey to the grantee in præsenti; and, second, the entering into possession by the grantee under said promise; and, third, the making of valuable and permanent improvements on the part of the grantee and in the reliance on the grantor's promise. While a parol sale or gift of land may be sustained in equity when it is followed by the possession of the grantee or donee who makes valuable improvements thereon in good faith (Wootters v. Hale, 83 Tex. 563, 19 S. W. 134), yet it does not follow that the validity of such sale or gift may not be sustained in the absence of valuable and permanent improvements.

"A contract to devise land, though looked upon with some disfavor as a nontestamentary method of disposition of property at death, and consequently not subject to the statute of wills, will yet be in effect enforced by equity when the contract is clear, definite, and without doubt. It is obvious that equity cannot compel direct specific performance of the contract to devise land by ordering the promisor to make the devise before his death, as performance is not due until the time of death. But equity will do what is equivalent to giving specific performance, by fastening a trust upon the land in the heir or devisee, and enforcing conveyance by the representative holding the legal title in favor of the purchaser under the contract to devise. Before the death of the promisor equity will enjoin any attempted conveyance of the land to a third party as a fraud upon the promise of the contract to devise; or, if it has been conveyed to a grantee with notice or without consideration, equity will compel the land either to be held in trust for the devisee purchaser or to be reconveyed to the grantor." 6 Pomeroy, Eq. Jur. § 746.

See, also, Davies et al. v. Cheadle et al., 31 Wash. 168, 71 Pac. 728; Harrison v. Harrison, 80 Neb. 103, 113 N. W. 1042; Burns v Smith, 21 Mont. 251, 53 Pac. 742, 69 Am. St. Rep. 653; Bryson v. McShane, 48 W. Va. 126, 35 S. E. 848, 49 L. R. A. 527; note under Krell v. Codman (Mass.) 14 L. R. A. 860; Grindling v. Rehyl, 149 Mich. 641, 113 N. W. 290, 15 L. R. A. (N. S.) 466; Teske v. Dittberner, 70 Neb. 544, 98 N. W. 57, 113 Am. St. Rep. 802; Clancy v. Flusky, 187 Ill. 605, 58 N. E. 594, 52 L. R. A. 277; Burdine v. Burdine, 98 Va. 515, 36 S. E. 992, 81 Am. St. Rep. 741; Kent v. Kent, 62 N. Y. 560, 20 Am. Rep. 502; Updike v. Ten Broeck, 32 N. J. Law, 105; Young v. Young, 45 N. J. Eq. 27, 16 Atl. 921; Masterson v. Harris, 174 S. W. 570; Clark v. West, 96 Tex. 437, 73 S. W. 797; Jordan v. Abney, 97 Tex. 296, 78 S. W. 486....