Wootters v. Hale

• Decision Date: 01 March 1892
• Citation: 19 S.W. 134
• Parties: WOOTTERS v. HALE.
• Court: Texas Supreme Court

19 S.W. 134

WOOTTERS v. HALE.

Supreme Court of Texas.

March 1, 1892.

Commissioners' decision. Section B. Appeal from district court, Houston county.

Trespass to try title by J. C. Wootters against W. T. Hale. Verdict and judgment for defendant. Plaintiff appeals. Affirmed.

Nunn & Nunn, for appellant.

GARRETT, P. J.

Action of trespass to try title, brought by the appellant, J. C. Wootters, against the appellee, W. T. Hale. This is the second appeal. The first will be found reported in 67 Tex. 514, 3 S. W. Rep. 725. Wootters claims the land by virtue of a conveyance from Robert Hale, the father of the defendant, and the latter claims it by virtue of a parol gift from his father, accompanied by occupation and improvements. There was a jury trial, which resulted in a verdict and judgment for the defendant, from which the plaintiff has appealed.

Upon the trial the defendant was permitted to testify, over the objection of the plaintiff, that his father, Robert Hale, by verbal declaration, gave defendant the land in controversy, the objection being that it was not competent for the defendant to give such testimony as against the plaintiff, who claims by deed from Robert Hale, deceased; for the statute¹ allowing a witness to testify in his own behalf makes an exception which excludes his testimony in this case. The defendant does not claim the land as the heir or legal representative of his father, and the exceptions mentioned in the statute will not be tended by implication to a class of persons not named, although the reason for embracing them was equally as strong as those which existed for including the persons expressly designated. Newton v. Newton, 77 Tex. 510, 14 S. W. Rep. 157. In the case of Chamberlain v. Boon, 74 Tex. 660, 12 S. W. Rep. 727, the controversy was between Boon, who claimed under Clark, and a vendee of the heirs of Clark, who had died, and the court held that there was no error committed in permitting Boon to testify as to a transaction between himself and Clark. There will be no extension of the exceptions. They are confined to parties to the suit, and to those named in the statute; "parties" meaning a party to the issue, and not to the record only. It was not improper to admit the evidence.

Appelant's second assignment of error is that "the court erred in submitting to the jury an issue as to the alleged gift of Robert Hale to W. T. Hale in 1881, because there was no sufficient evidence to support a finding in favor of the defendant on such question." In 1874 the heirs of Kerchoffer brought an action against Robert Hale, W. T. Hale, and one J. H. Burnett to recover the land in controversy. The two latter disclaimed, and in 1879 a judgment was rendered in favor of Robert Hale for the land, and in favor of W. T. Hale and Burnett for costs on their disclaimer. Plaintiff claims the lands by a deed from Robert Hale to him dated March 8, 1882, and also by a deed from Kerchoffer's heirs to him, dated October 5, 1882. This action was brought September 17, 1886; and on the first trial of the case the defendant, W. T. Hale, testified that his father gave the land to him and his brother, John Hale, and that they went upon it in 1867, and commenced to improve the same; and testified at some length about occupation and improvements, and that in 1870 or 1871 he had bought his brother out. He said nothing about a gift having been made in 1881 after the judgment in the suit by the Kerchoffer heirs. On the first appeal the supreme court held that, having taken a judgment on his disclaimer, W. T. Hale was estopped from setting up title against one claiming through the heirs of Kerchoffer, unless he could show title acquired since the judgment in that suit. 67 Tex. 514, 3 S. W. Rep. 725. On the last trial the defendant testified as to a gift from his father to him of the land since the judgment in the suit of Kerchoffer's Heirs v. Hale, and the court submitted this issue to the jury. Appellant contends that the evidence was not sufficient to support the findings thereon in favor of the defendant, and it should not have been submitted. The defendant testified, in substance, that he claimed the land in controversy as a gift from his father, Robert Hale. In 1867, Robert Hale gave the land to him and his brother, John, and he bought John's interest in 1870 or 1871, for which he paid him $600, and lived on the land from 1867 to 1878. He moved off the land in 1878, on account of the suit filed for it by the Kerchoffer heirs, which was then pending; that he was uneasy about the title to the land, as it was in litigation, and did not want to improve it further. He moved to a small place near by, but continued to cultivate the land, and got all there was made on the place, and did not pay any rent. No one ever demanded any rent from him from the time he first moved off the place in 1878. In August or September, 1881, which was after the termination of the Kerchoffer heirs' suit, his father told him that because of the work he had done on the land, and the $600 he had paid his brother, he thought defendant ought to have it; that he wanted him to have it, and, if he would move back on the place, he would give it to him; and went with him, in company with L. H. Beard, to select a building site thereon. Defendant consented, and they went to the place, and his father pointed out a good site, and asked defendant to build there. He immediately began to improve, and made arrangements to build, and, in addition to improvements made during his prior occupation, he cleared and improved about 20 acres of land in the fall of 1881, at a cost of $10 per acre, and built a log-house side room and gallery, worth about $200, and moved back on the place in December, 1881. He built a smoke-house in 1881 or 1882, worth $15. In 1883 he erected a log-house, worth $200, and in 1884 or 1885 he planted an orchard, worth $25. In 1884 he made a garden, worth $20; two corn-cribs, worth $20 or $25 each, but not worth so much at time of trial. In 1883 he built a smoke-house, worth $15, but not so much now, and a tenant-house, worth $100. In July or August, 1886, he put up a house worth $200. (Plaintiff's deed is shown to have been recorded March 9, 1882, but it does not appear that the defendant knew of its execution.) He testified that he had lived on the land and claimed it since 1881. He moved on it, and cleared up land, and built houses on it, because his father gave him the land, and promised to make him a deed to it. There were no improvements on the land when he went there in 1867. He had sold the small place that he went to in 1878, and had no home except the one in controversy. He filed the disclaimer in the suit brought by the Kerchoffer heirs, because his father told him he would defend the suit. On cross-examination he said the first gift was made by his father in 1867. On the former trial all his testimony was as to the gift of 1867, and he said nothing then as to the gift of 1881. When asked if he had not claimed the land since 1867, he said: "I can't say that I have claimed the land since 1867, because I abandoned it in 1878." But he continued to cultivate it, and get the rents and profits, after moving off of it in 1878. That he has got the rents of the place since 1867, and never paid any rents for the use of it, and no one demanded possession of him. That he felt safer in going off the place while in litigation. That he has paid the taxes on the land since 1881, and rendered it in 1879 as the Conner land. He left the place during the pendency of the Kerchoffer suit, and went back on it after his father gave it to him in 1881. He did not think he would have gone on the place had the gift not been made him again in 1881. The testimony of W. T. Hale on the former trial of the case in...