Texas & P. Ry. Co. v. O'Mahoney

• Decision Date: 11 March 1899
• Citation: 50 S.W. 1049
• Parties: TEXAS & P. RY. CO. v. O'MAHONEY.
• Court: Texas Court of Appeals

50 S.W. 1049

TEXAS & P. RY. CO. v. O'MAHONEY.

Court of Civil Appeals of Texas.

March 11, 1899.

Appeal from district court, Marion county; J. M. Talbot, Judge.

Action by H. O'Mahoney against the Texas & Pacific Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed on rehearing.

F. H. Prendergast, for appellant. T. P. Young, for appellee.

BOOKHOUT, J.

H. O'Mahoney filed suit in the district court of Harrison county, Tex., on May 25, 1895, for damages, as follows: (1) The railroad built a water reservoir, and the sipe water through the dam destroyed a portion of plaintiff's land. (2) The water was caused to overflow plaintiff's garden, destroying his garden, and made his family sick; claiming damages in the sum of loss of services of his wife and children from sickness, $500; medical bills, $200; garden destroyed, $100; damages by sipe water, $600. On application of plaintiff, venue was changed to Marion county, Tex., and on June 14, 1898, a verdict by the jury and judgment for plaintiff for $510. Defendant appealed.

Appellant's first assignment of error complains of the action of the court in overruling defendant's exception to the evidence of James Turner, going to show a verbal sale of the land from Turner to plaintiff, O'Mahoney, in April, 1894, because there was no written memorandum of the sale signed by either party, and no facts were shown making a verbal sale valid. The evidence offered was, in substance, that in 1891 James Turner owned the land, and at that time O'Mahoney loaned Turner about $900, and to secure him in said loan Turner put him in possession of the land under a written lease. During the time O'Mahoney was in possession, and prior to April, 1894, he improved the property by erecting a residence and outhouses thereon, and fenced in the land. These improvements were made under an agreement that Turner should pay for the same. The mortgagor, being unable to pay for the improvements, made a verbal contract with the mortgagee in April, 1894, to sell him the land. In accordance with this contract, the mortgagee surrendered the note evidencing the debt. In compliance with this verbal sale, Turner did execute a deed to Mrs. O'Mahoney for the land in 1896. This was after the suit was instituted, and after the injury was done for which plaintiff seeks damages. Sometime in 1895 Turner gave O'Mahoney a written statement, reading: "In April, 1894, I sold O'Mahoney the tract of land in Marshall, Texas, known as the `Speed Place,' containing about nine acres, on which he now resides. He paid me for the land, but the deed has not been made, because we were waiting to ascertain the limits of another tract of land sold to him at the same time. My contract is to make him a deed to the land, with all its appurtenances, with full warranty of title." When the above evidence was offered, the defendant objected to its introduction, because the sale in April, 1894, was a verbal sale, and no written memorandum was made of the same and signed by the parties; and defendant objected to the written statement because it is not dated, and is an ex parte statement of James Turner of a past transaction, and made since this suit was filed; and defendant objected to the deed because it was executed since the filing of this suit. It is contended, in support of these exceptions, that O'Mahoney loaned Turner the money in 1891, and as security for the loan Turner placed him in possession of the property, not as purchaser, but as a tenant, and while he was so in possession as a tenant he made the improvements; that the improvements were made prior to 1894; and that when the verbal sale was made, in 1894 (no written memorandum being made at the time), plaintiff had no title to the land, nor at the time the injury occurred, nor at the time suit was filed. Appellant cites authorities to the effect that, where a verbal sale or gift is relied upon to show title, possession must have been taken, and permanent and valuable improvements made, with the knowledge of vendor, upon the faith of such sale or gift. Wooldridge v. Hancock, 70 Tex. 21, 6 S. W. 818. In the case of Hibbert v. Aylott, 52 Tex. 530, one John Hibbert had leased from Aylott lots 6 and 7, in block 498, in the city of Galveston, and entered into possession thereof under said lease. Upon these lots was an old wooden building. Aylott agreed with Hibbert if he (Hibbert) would, in the place of the old wooden building, erect a substantial brick business house, he (Aylott) would convey to him (Hibbert) said lots, at any time before or at the expiration of his lease, for $3,000, to which Hibbert agreed, and did remove said old wooden house, and erect said brick building, with knowledge of Aylott. Aylott died before the expiration of Hibbert's lease. Hibbert tendered the purchase money. Suit was instituted against the heirs of Aylott for specific performance, and it was held that under these facts Hibbert was entitled to a judgment enforcing the contract. The facts of the case at bar, we think, present stronger reasons for relief than were presented in the foregoing case. O'Mahoney was in possession of the land under a lease as security for a loan of $900. He made permanent and valuable improvements upon the land upon the agreement that Turner was to pay for the same. Before the injury complained of occurred to the land, Turner and O'Mahoney entered into a contract of sale, by the terms of which O'Mahoney was to surrender his debt and his claim for improvements, and Turner agreed to make him a conveyance to the land. The note for $900 evidencing the loan was surrendered by O'Mahoney to Turner. The deed was not made at that time. It nowhere appears that Turner ever refused to make the deed, or that, after said contract of sale was entered into, he ever made any claim to the land. It does appear that some time after suit was instituted he did make and sign a written statement to the effect that he had sold the land to plaintiff, and that he had been paid for it, and expressed a willingness to make a deed, and states his reasons for not having made a deed. After this he executed a deed to the land in accordance with the verbal sale. It thus appears that the parties acted upon the verbal sale, never having in any way repudiated it, and that the terms of the verbal sale were fully carried out by them. Under the facts, the court did not err in admitting the evidence, and we overrule appellant's first assignment of error.

Appellant's second assignment of error complains of the action of the court in sustaining plaintiff's exceptions to the deed from James Turner to the defendant, dated April 4, 1891, offered in evidence by defendant. Upon the trial the defendant offered in evidence a deed from James Turner to the defendant conveying a strip of land 50 feet wide and 475 yards long, for the purpose of showing that plaintiff did not own that part of the land described in said deed, and to show that defendant did own it. Objection was made to this deed, because there was a variance between it and the pleading, and because defendant's plea does not show what part of the land the deed includes, and there is no pleading under which the deed is admissible, and it is immaterial. The plea of defendant, as we construe it, does not set up title in defendant to the land described in plaintiff's petition. The plea did set up that James Turner, on January 4, 1890, instituted suit against defendant in the district court, "seeking to recover $3,300 damages, caused by the same acts and omissions for which plaintiff now seeks to recover, and sought to recover the same damages now sought to be recovered; that the said James Turner then owned the land, and the plaintiff claims under him by subsequent transfer of some sort; that on April 4, 1891, said suit was compromised and finally settled by defendant paying to said Turner $1,125, and he deeded the land to defendant, by reason of which plaintiff cannot recover." This plea does not show that the particular land alleged by the plaintiff to have been rendered valueless was included in the deed executed by Turner to it. The plaintiff sued to recover damages, among other things, to his homestead, containing about nine acres, and alleged that three acres of it had been rendered valueless by the heightening of the defendant's dam, and the escape of water therefrom by overflow and the percolation of the water through the embankment. The defendant offered the petition in a suit instituted by James Turner in 1890 against defendant, seeking to recover damages resulting from water escaping from the dam and damaging his land, and further offered to prove by James Turner that the suit was compromised by the railroad paying said Turner $1.125, and that he deeded it a strip of land 50 feet wide and 475 yards long, described in said deed, along the northern boundary of the railroad company's lands, which...