59 S.W.2d 252 | Tex. App. | 1933
(after stating the case as above).
With reference to the purported sale or gifts of tbe interests under consideration to H. P. Leverett, the jury in answer to issues submitted found: That H.'P. Leverett and wife on or about July, 1894, entered into a contract with W. B. Leverett and C. O. Leverett, whereby 'W. B. Leverett and 0. 0. Leverett agreed to give their interest in the land in controversy to H. P. Leverett and wife, in consideration that they repair and put into living condition the house on the place, and keep and care for their mother the remainder of her natural life. The letter of W. B. Lev-erett constituted a sufficient memorandum in writing of the contract of sale or gift by him to meet the requirements of the statute of frauds, R. S. article 3995, which provides:
“No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized:
“4. Upon any contract for the sale of real estate. * * ⅜ ”
See Mondragon v. Mondragon, 113 Tex. 404, 257 S. W. 215.
Whether the agreement, of which the letters constitute a memorandum, be treated as a gift or sale, it passed the equitable title to I-I. P. Leverett, subject to being defeated only by his failure to discharge the consideration, after the performance of which it became superior to the legal title held by W. B. Leverett, “and a court of equity will compel a specific performance, by decreeing a conveyance by the vendor, of the legal title.” Vardeman v. Lawson, 17 Tex. 11; Newsom v. Davis, 20 Tex. 419. It is not necessary that the written memorandum recite all the terms of the agreement or state the consideration. Morrison v. Dailey (Tex. Sup.) 6 S. W. 426; Fulton v. Robinson, 55 Tex. 401. For it is the contract, of which the writing is merely a memorandum, that is being enforced. The statute of frauds does not declare a verbal contract for the sale of real estate illegal or void, but merely provides a means of successful resistance when the statute is not complied with. It is not the compliance with the statute that constitutes the contract. The statute presupposes its legality and enforcement of which only is suspended unless the contract or some memorandum thereof be reduced to writing and signed by the party to be charged therewith. Simpson v. Green (Tex. Com. App.) 231 S. W. 375.
But as to C. C. Leverett, the sale or gift was purely parol concerning which noth
The jury found in favor of plaintiffs on each of their pleas of limitation, and the finding is supported by the evidence. But the appellants claim that there was no proof that notice was given to C. C. Leverett of H. P. Leverett’s adverse claim. The law is well settled that before a cotenant in possession can start the statutes of limitation running against his cotenants it must appear that he had repudiated their title and is holding adversely to it; and notice of such adverse holding must be brought home to them, either by information to this effect given to them by the cotenant asserting the adverse right, or by such acts of unequivocal notoriety in the assertion of such adverse and hostile claim that they will be presumed to have notice of such adverse claim. Fowler v. Hardee (Tex. Civ. App.) 16 S.W.(2d) 154; Rivers v. Griffin (Tex. Civ. App.) 16 S.W.(2d) 874. And the registration of a deed from one eotenant to a cotenant in possession will not of itself operate as notice to the other co-tenants of the adverse character of the possession of the cotenant grantee. Arrington v. McDaniel (Tex. Com. App.) 14 S.W.(2d) 1009; Ford v. Weigher (Tex. Oiv. App.) 253 S. W. 958. But the contracts of sale or gift found by the jury to have been made by C. C. Leverett and W. B. Leverett to H. P. Leverett constituted sufficient notice within themselves that H. P. Leverett’s subsequent possession was adverse, and the consideration having been fully performed upon the death of Mrs. E. A. Leverett, there was no impediment to the running of the statute of limitation subsequent thereto. However, appellants contend there was a break in the possession of H. P. Leverett by virtue of the execution by H. P. Leverett and wife of an oil and gas lease conveying seven-eighths of the minerals in and under 133 acres of the land to G. B. Turner, on December 13, 1919. It was what is known as a producer’s oil and gas-lease, and there being no production thereunder, the mineral interest thereby conveyed reverted to lessors at the expiration of its term, five years. The rule applicable to the facts under
Appellants have presented a number of other assignments, each of which we have duly considered; but, finding no error presented, they are respectfully overruled.
The judgment of the trial court is affirmed.