Stevens' ex'Rs v. Lee

• Decision Date: 20 March 1888
• Parties: STEVENS' EX'RS v. LEE.
• Court: Texas Supreme Court

8 S.W. 40

STEVENS' EX'RS v. LEE.

Supreme Court of Texas.

March 20, 1888.

Commissioners' decision. Appeal from district court, Grimes county; N. G. KITTRELL, Judge.

Originally, this was a suit in trespass to try title, brought June 1, 1878, in the district court of Grimes county, by Henry Lowell and his wife, Carrie Lowell, against B. F. Lee, as the party in possession, for the recovery of 56 2/3 acres of improved land in that county, conveyed to plaintiffs by Mrs. Elizabeth L. Stevens, by deed bearing date April 30, 1878. On November 8, 1878, Lee answered, specially alleging, by way of cross-bill, after defenses to plaintiffs' action, a parol agreement by Mrs. E. L. Stevens that defendant should have certain lands of Mrs. Stevens after her death, in consideration of services to be rendered by Lee; that Stevens had renounced the contract, without his fault or consent, by conveying the land to plaintiffs; and prayed that Mrs. Stevens be made party defendant, and for judgment against her for the value of such services as he had rendered, in case the land be adjudged to plaintiffs. Mrs. Stevens was made party defendant, and filed her answer, denying allegations of defendant, Lee. Judgment was entered for plaintiffs that they have the land, and in favor of Lee for the value of his services. From the judgment for Lee, Mrs. Stevens appealed; the judgment was reversed, and the cause remanded. Stevens having died pending the appeal, her executors, J. T. Harcourt and J. N. Callaway, were thereupon substituted in her place. Verdict was again rendered for Lee, and defendants, the executors, appeal.

Gresham, Jones & Spencer, for appellants. Hutcheson & Carrington, for appellee.

ACKER, J.

This is the second appeal in this case; the first, by Mrs. E. L. Stevens, who died pending the appeal, and this by her executors. The opinions delivered by the commission of appeals, and by the supreme court on motion for rehearing on the former appeal, have not been published, but we find them with the record. On the former trial, Mrs. Stevens interposed a plea in abatement to the cross-bill of appellee, which plea was also interposed by appellants on the last trial. It appears from the opinions, as well as the record on the former appeal, that the court did not act on the plea in abatement at the first trial. On the last trial the court overruled the plea, and this ruling is complained of as error. Appellee claimed the land under an agreement between him and Mrs. Stevens. She repudiated the agreement, and conveyed the land to Lowell, who brought suit to recover it. Lee answered, alleging a fraudulent combination and conspiracy between Lowell and Mrs. Stevens to deprive him of the land, and asking that Mrs. Stevens be made a party to the suit, which was done. The failure of Mrs. Stevens to have the court act upon the plea in abatement on the first trial was an abandonment or waiver of the plea, and appellants could not afterwards renew it. There can be no error in the ruling of a court upon an abandoned pleading. Rev. St. art. 1291. But, if this were not so, we think the allegations of the cross-bill were sufficient to give the court jurisdiction of the person of Mrs. Stevens, notwithstanding her residence in Galveston county. Baily v. Trammell, 27 Tex. 326.

After the judgment rendered on the first trial was reversed, and the cause remanded, appellee filed an amended answer and cross-bill setting out the agreement between him and Mrs. Stevens under which he claimed the land, alleging performance upon his part, and renunciation of the agreement by her, without his fault or consent, and praying for judgment against her for the value of his services rendered under the agreement, in the event the land should be adjudged to Lowell. Appellee offered the testimony of several witnesses to prove the agreement between him and Mrs. Stevens, to which appellants objected, upon the ground that the agreement was a contract for sale of the land, was within the statute of frauds, and could not be established by parol. The objection was overruled, and the evidence admitted, which...