Wooldridge v. Hancock

• Decision Date: 17 January 1888
• Parties: WOOLDRIDGE <I>et al.</I> v. HANCOCK <I>et al.</I>
• Court: Texas Supreme Court

6 S.W. 818

WOOLDRIDGE et al. v. HANCOCK et al.

Supreme Court of Texas.

January 17, 1888.

Commissioners' decision. Appeal from district court, Lamar county; A. M. TAYLOR, Judge.

This suit was brought by appellants, as the heirs of Nancy G. Jennings, September 20, 1883, to recover their interest in a tract of land in Lamar county, of 231 acres, for rents and profits, and for partition; alleging that M. H. Hancock, who owned a one-eighth interest, as vendee of Cicero Jennings, an heir of Nancy G. Jennings, had taken possession of the whole of the land, denied appellants' right to any part of it, and had rented it out, and collected rents since September 1, 1881, and that the rents were worth $8,000 per annum. Defendant Hancock pleaded that he purchased the land from Cicero Jennings, son of Nancy G. Jennings, deceased; that the property belonged to the said Nancy, and that for services rendered her and her unmarried daughters for a number of years, in supporting and taking care of them, the said Nancy gave or sold by parol to Cicero, and delivered possession to him, and that, relying on said gift, he made lasting and valuable improvements on said land, with the knowledge and consent of the donor; that said Nancy died in the year 1873, and during her last sickness made a nuncupative will, by which she confirmed the gift or sale of said land to Cicero, which was duly probated in Lamar county. Defendant also pleaded stale demand, payment of taxes, 10 years' limitation, and improvements in good faith by virtue of his purchase from Cicero, believing that he had a good and valid title. He further pleaded the total insolvency of Nancy G. Jennings' estate, the changed condition of the parties and property, and claimed that he would suffer insuperable injury, if plaintiffs should recover. Plaintiffs specially excepted to that part of the answer which set up the nuncupative will, and denied that the improvements were made in good faith; claimed that Cicero was only entitled to one-eighth interest in the land, and that all improvements made on the land were paid for by either A. J. Jennings, (who released his interest to them,) or from rents and profits of the place. Plaintiffs also replied to the plea of limitation that they were minors and married women. Plaintiffs' exceptions to defendants' answer setting up the nuncupative will of Nancy G. Jennings was overruled, to which they excepted. It was admitted that Obe Jennings and A. J. Jennings were barred by limitation. There was a verdict and judgment for defendants.

The assignments of error relied on are as follows:

First. The court erred in overruling plaintiffs' special exceptions to that portion of defendants' first amended original answer which sets up a nuncupative will and its probate, and the declaration of Nancy G. Jennings in regard thereto.

Second. The court erred in admitting in evidence the nuncupative will of Nancy G. Jennings and the order of the county court probating the same, for the reasons fully set out in plaintiffs' bill of exceptions No. 1, which is made a part hereof as follows: (1) That there is no pleading by defendant setting up any equities under the nuncupative will, so as to admit the same in evidence; (2) because it is not a muniment of title, and real estate cannot pass thereby, nor does it purport to be a will of real estate; (3) because there is no pleading of defendant showing any ratification or acquiescence by plaintiffs, they being minors and married women; (4) because the testimony was calculated to mislead the jury.

Third. The court erred in its charge to the jury, in submitting to them that they could find for the defendants, if improvements had been made, while holding under the nuncupative will, when no such issue was presented by the pleading of defendants; nor was there any proof of such improvements made on the faith of such nuncupative will.

Fourth. The court erred in second and third charges to the jury in this: The issues presented by the pleadings are ignored, and the jury allowed to find equities arising either under a parol gift, a parol sale, or a nuncupative will, without defining either, or giving the law applicable to either.

Fifth. The court erred in the last portion of second charge in this: In refusing to apply the equitable doctrine of offsetting the improvements made by the amount of rents received by defendants, or to find against defendants, even though all the improvements are made out of rents received from the property, if plaintiffs had waited an unreasonable time before beginning suit; in thus defining what was an unreasonable time, as applied to minors and married women.

Sixth. The court erred in the third charge, as given to the jury, in this: It fails to define what character of possession of Cicero Jennings must have been given under the parol gift during Nancy G. Jennings' life-time, or under the nuncupative will after her death, to raise the equities relied on by defendants.

Ninth. The court erred in overruling plaintiffs' motion for a new trial, for the reasons fully set forth in said motion, which is here referred to and made a part of this assignment of error. Ninth ground of the motion for a new trial is: Because the verdict is contrary to and against the evidence in this: that Nancy G. Jennings did not make or intend to make any gift to Cicero, to take effect during her life.

The first charge of the court is as follows: "A nuncupative will, although duly probated, is not sufficient to pass title to real estate; but, if possession is given under such will, and such party so in possession make valuable improvements on such land, upon faith of such will, such will, possession, and improvements will give title against the heirs of the deceased. But to have such effect, the improvements following such will and possession, and upon the faith of them, must be of a substantial character and valuable, and of such extent that they create for the party making them a right or an interest in the land of which it would be unjustifiable and unconscionable to deprive him; and in this connection you may consider whether improvements are the result of labor, or money expended therefor, or whether they are the revenues or profits of such land changed into improvements thereon, by appropriating the rents to improvements. Second. A parol gift of land, to be valid and sufficient, must be accompanied by possession and improvements, as in case of a nuncupative will; and the law given you in the charge upon the subject of such will is the law which you must apply to the consideration of a parol gift. Third. A parol sale is distinct from a parol gift or nuncupative will in that it has a valuable consideration in money or thing of value paid, or doing or performing labor or service instead of money. A parol sale of land, to be valid and sufficient, must be followed by possession under it, and, by virtue of it, the making of valuable and permanent improvements on it, and the purchase price or consideration, or a considerable part thereof, must be paid. The improvements here spoken of need not be of such value and character as is required in case of parol gift, or nuncupative will; but they must nevertheless be real and substantial, both in extent and value, and must...