156 S.W.2d 990 | Tex. App. | 1941
This is an action in trespass to try title, filed by Mrs. E. L. Walker, Mrs. Bessie Staerker, Otto Staerker, Mrs. Lena Falvey, Mrs. Alma Barksdale, and C. R. Starnes, against R. H. Anderson and wife, Mabel Anderson, A. D. Swan, and J. F. Hair, to recover title and possession of two small tracts of land in Gregg County. Plaintiffs specially pleaded the 3, 5, and 10 year statutes of limitation. Defendants’ answer contains a general denial, a plea of not guilty, and a cross action in trespass to try title to the land. ' Trial of the case resulted in a verdict and judgment for plaintiffs. The defendants have appealed.
Appellees Mrs. E. L. Walker, Bessie Staerker, Lena Falvey and Alma Barksdale are the widow and children, respectively, of Dr. E. L. Walker, deceased. Appellants admit that the land in question was community property of Dr. and Mrs. Walker, but contend that appellants acquired title to the land from Dr. Walker by one or the other, or both, of the following means:
(1) That Dr. Walker during his lifetime conveyed the land in fee to the State of Texas for state highway repair purposes by a deed which has been lost and never recorded ; that since the death of Dr. Walker the State of Texas, through its Governor acting upon the order of the State Highway Commission conveyed and quitclaimed the land to R. H. Anderson and Roy Laird, who in turn conveyed interests therein to the other appellants.
(2) That Dr. Walker during his lifetime made a parol sale of the land to R. H. Anderson and Roy Lqird who in turn conveyed interests to the other appellants.
Appellants’ said contentions were submitted in two special issues, in answer to each of which the jury found against appellants. It is contended that the findings of the jury are contrary to the uncon-tradicted testimony. Appellants claim that they established title to the land under their first contention (that of a lost deed alleged to have been executed by Dr. Walker to
“Whereas, the State of Texas, in constructing the east approach to the Sabine River Bridge on Highway No. (State 31) U.S. 271, in Gregg County, secured certain borrow rights from Dr. E. L. Walker, now deceased, without written agreement; and,
“Whereas, Dr. E. L. Walker, about the year 1929, permitted the State to borrow material from the following described land, to-wit:” (Italics ours.)
It is a well-settled rule that the grantee claiming title under a deed is bound by the recitations therein legitimately appertaining to its subject-matter. Kimbro v. Hamilton, 28 Tex. 560; Waco Bridge Co. v. City of Waco, 85 Tex. 320, 20 S.W. 137; Greene v. White, Tex.Sup., 153 S.W.2d 575; 43 T.J. 647, § 383; 21 C.J. 1088, § 68.
The second theory by which appellants claim to have acquired the title admittedly held by Dr. and Mrs. E. L. Walker is a parol sale by Dr. Walker to R. H. Anderson and Roy Laird. With respect to alleged parol sale, R. H. Anderson and Roy Laird testified, in substance, that in 1931, they sub-leased the land from one J. T. Castleberry, a tenant of Dr. Walker, for the purpose of building and operating a garage thereon; that they were to pay Castleberry as rent $5 for the first month and $15 per month thereafter; that they thereupon built a garage and a two-room house on the land, and thereafterwards paid Castleberry the rent for five months, when Dr. Walker informed them that Castleber-ry had no authority to sub-lease the land; that Dr. Walker then said he thought that he had sold the land to the state and would give Anderson and Laird a quit-claim deed to it; that he would look the matter up and see if he had sold it to the state; that they later went to see Dr. Walker about getting the deed from him and he refused to execute the deed. Anderson and Laird do not -claim to have paid Walker any consideration for the land. The improvements were constructed under the lease from Castleberry, and prior’to the time Walker stated that he would give Anderson and Laird a quit-claim deed to the land. The testimony fails to meet any of the three prerequisites (all of which are essential) to enforce parol sale of land: (1) Payment of a consideration by the purchaser; (2) surrender of the possession by vendor to vendee; and (3) the making of valuable improvements upon the land by vendee with consent of vendor; or without such improvements the presence of such facts as
We have examined each of appellants’ propositions, but find no reversible error, and they are overruled.
The judgment of the trial court will be affirmed.