author: GRAVES, J. PLEASANTS, C. J.

text:
    CELLI v. SANDERSON et al.
    (No. 7579.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 30, 1918.
    Dissenting Opinion, Dec. 5, 1918.
    Rehearing Denied Dec. 19, 1918.)
    1. Appeal and Ebrob @=>193(1) — Lack op Objection to Pleadings Below — Objection on Appeal.
    Where defendant, by general demurrer and denials, merely joined issue on the facts, presenting in the Court of Civil Appeals for the first time question of the sufficiency of the pleadings, his action was permissible if the pleadings presented only one specific cause of action, and the judgment was founded on a fundamentally different one.
    2. Divobce @=>254 — Decree — Attack pob Fraud — Pleading—Evidence.
    Averment of divorced wife’s complaint attacking decree dividing community property on ground that it was procured by fraud on her and the court, in absence of special exception, held sufficient to admit evidence as to the exact time when and the.conditions under which her husband’s fraud was discovered.
    3. Appeal and Ebrob @=>193(1) — Lack op Objection to Pleading oe Evidence Be-tow.
    Where averment of complaint was sufficient to admit certain necessary evidence, which, in fact, was admitted on trial without exception to-the pleading or objection to the evidence, objection to the sufficiency of the complaint is not one going to foundations of action, and comes too late in Court of Civil Appeals.
    4. Appeal and Ebrob @=>672 — Fundamental Eeeoe pob Reversal.
    Assignment of error presenting overruling of defendant appellant’s original motion for new trial as error, in that verdict and judgment were not sustained by evidence, on its face invites examination of entire record to determine sufficiency of evidence on each of the elements of fraud specified by plaintiff, and could not present fundamental error calling for reversal after judgment.,
    5. Appeal and Ebrob @=>301 — Failure to Object Below — Motion pob New Trial— Waiver op All but Fundamental Eeeob —Rule op Court.
    In ease of a jury trial, where filing of motion for new trial is a prerequisite to the right of appeal, rule 24 of the Court of Civil Appeals (142 S. W. xii) requires assignments of error to be set forth distinctly in motion for new trial, otherwise such assignments as do not comprehend fundamental error will be treated as Waived.
    6. Pleading @=>34(7) — Failure to Object to Pleadings — Construction.
    Pleadings not objected to below, except by interposition of general demurrer, on appeal will be given most liberal construction consistent with their terms, every reasonable intendment being indulged in their favor, a rule particularly applicable to a bill in equity.
    7. Pleading @=>34(4) — Construction
    Against Pleader.
    Particular averments of doubtful meaning, at least in pleadings at law, must be construed against the pleader.
    8. Divorce @=>254 — Property Rights — Pleading.
    In cases such as wife’s suit to set aside divorce decree in her favor, in so far as dividing community property as having been procured by husband’s fraud, controlled by Rev. St. 1911, art. 4634, as to division of estate of parties, it is necessary to comply with fundamental rules of pleading, but the court should likewise construe pleadings so as to give effect to any real equities.
    9. Divorce @=>254 — Decree as to Property-Relief from Fraud — Pleadings.
    In divorced wife’s suit to set aside decree, in so far as affecting community property, as procured by husband’s fraud, broad scope of wife’s pleadings, and her prayer for general relief, held adequate basis for judgment for her, making a redistribution in money of the community property.
    Pleasants, O. J., dissenting.
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Suit by Virginia Sanderson and another against Prank Celli. Prom decree for plaintiffs, defendant appeals.
    Affirmed.
    Marsene Johnson, Lewis Pisher, Roy Johnson, Elmo Johnson, and Marsene Johnson, Jr., all of Galveston, for appellant.
    James B. & Charles J. Stubbs, G. G. Clough, and P. Spencer Stubbs, all of Galveston, for appellees.
   GRAVES, J.

On and prior to July 9, 1914, Virginia and Prank Celli were husband and wife, owning certain community property. Upon that date, at the suit of the former for all those purposes, the Fifty-Sixth district court at Galveston entered its judgment divorcing them, granting the custody of their two young minor children to the mother, and disposing of their community property by approving and confirming a settlement they had themselves on the same day agreed upon concerning it. That settlement was that lots 14, 13, and west ½ of 12 in N. W. ⅛ of outlot 91 in the city of Galveston, together with improvements, were by them jointly deeded to their two minor children, subject to a life estate of Virginia Celli therein, with the right to her to collect all rents and revenues therefrom until her death, or until her marriage to some other person than her former husband, Prank Celli. The judgment recited that she had accepted this conveyance of the property mentioned to her children, carrying such life estate therein to herself, in lieu of any further interest in or claim upon her part to the community property she had so sued to have accounted for and partitioned between them, and then further specifically decreed the other enumerated community property, both real and personal, to Prank Celli as thenceforth to be his separate property.

On March 9, 1916, the former Mrs. Celli, having in the meantime married again and being then Mrs. Sanderson, brought the present suit in the same court to set aside, avoid, or modify the former judgment and the deed embodying this agreed settlement, which it confirmed, in so far as it disposed of her community estate and restricted her right to marry with penalty of forfeiture of her estate, on the ground of the alleged fraud of Prank Celli upon both herself and the court in the procurement of the settlement and of the judgment, in that, among other detailed matters not specially necessary to mention at this point, he had so withheld and misrepresented the existence, condition, and value of different elements of the community estate that, upon the whole and so far as amounts in money were concerned, he had unjustly and without her knowledge at the time (which fact, however, she has since discovered) deprived her of much the greater part of her just and proper share and portion of their community estate, and had thereby imposed upon and induced her to accept, and the court to so decree to her, the life estate in the lots mentioned alone, of the reasonable value of only about $6,000, when she was in fact entitled to about $24,250 as her portion. There were further averments as a basis for an injunction, not specially material now.

The action, thus only in its general features outlined, was tried before a jury, upon Special issues embodying these allegations of fraud and others as to the true values of the property; and, upon their answers being returned, finding the fraud to have been practiced substantially as charged and fixing the excess value of the community property on July 9, 1914, at $27,2S2.S3 over the lots described, the court finally, on June' 1, 1917, entered an amended decree therein, which, after first vesting one undivided half of the above-described lots and improvements thereon in the two minor children together, and the other half in their mother, Virginia Sanderson, among others not material for present purposes, contained this provision:

“And it appearing to the satisfaction of the court, from the answers of the jury to the special issues submitted to them, that the former decree in this court in cause No. 30,635, entitled Virginia Celli v. Frank Celli, rendered on the 9th day of July, 1914, was obtained by the said Frank Celli by false and fraudulent representations, it is further ordered, adjudged, and decreed by the court that the former decree rendered in this court in cause No. 30,635, in so far as it affects the property rights of the plaintiff, be and the same is hereby set aside, canceled, and vacated. And it further appearing to the satisfaction of the court that the defendant, Frank Celli, has converted all of the community property, in excess of those portions herein decreed to the minors, S. Frank Celli and Joseph S. Celli, and plaintiff Virginia Sanderson, to his own use; and from the answers of the jury that the value of said community is $27,282.83 — it is further ordered, adjudged, and decreed by the court that the plaintiff Virginia Sanderson do have and recover of and from the defendant, Frank Celli, the sum of $13,641.41, with interest thereon from this date at the rate of 6 per cent, per annum, and all costs of court, for which she may have her execution, and upon the payment of which sum of money the said Frank Celli shall be vested with all right, title, claim, and interest of the plaintiff Virginia Sanderson in and to all of the community estate.”

Frank Celli appeals, contending there was fundamental error below in several respects, but especially because of the alleged insufficiency of the pleadings of Mrs. Sander-son to support the judgment for money rendered against him. He neither excepted upon this ground to the pleadings below, nor objected on that account to any of the evidence, nor did he protest for any reason against the issues of fact submitted by the court to the jury, or ask that others be presented; but, under general demurrer and denials, merely joined issue upon the facts, and so fought the case through the trial court, even upon the hearing for a new trial, presenting in this court for the first time the question as to the sufficiency of the pleadings. That may be done without filing an assignment of error below, however, if the pleadings really present only one substantive theory or basic cause of action, and the judgment is founded upon a fundamentally different one. Dean v. Lyons, 47 Tex. 18; Payne v. Godfrey, 61 Tex. Civ. App. 40, 129 S. W. 163; Hall v. Jackson, 3 Tex. 305; Salinas v. Wright, 11 Tex. 572.

Upon looking to the assignments contained in appellant’s brief, regard being had to the previously mentioned fact that no objections nor exceptions were 'at any stage interposed in the trial court to the matters therein contained, and to the curative effect of a verdict and judgment under such conditions (Townes’ Texas Pleading, pp. 404, 405), we think none of them, unless it be the first two, raise a question of fundamental error. The third and fourth assail the judgment as not supported by the pleading, because it averred that “some time after the decree was entered,” etc., plaintiff discovered the falsity of defendant’s representations, instead of alleging just when she so discovered it and in detail just why she did not forthwith institute the present proceedings; a like omission in the proof being complained of under the eighth. In the absence of a special exception, this averment was sufficient to admit evidence as to the exact time when and the conditions under which the fraud was in fact discovered, and that having been fully done upon the trial, without exception to the pleading or objection to the evidence, the complaint is not one that goes to me foundations of the action, and comes too late in an appellate court. Rivers v. Campbell, 51 Tex. Civ. App. 103, 111 S. W. 190. The fifth challenges the correctness of the trial court’s action in refusing to permit appellant, at the time and under the circumstances offered, to file the amended motion for a new trial; but the recitations in the motion itself, taken in connection with the court’s qualification of the bill of exceptions relating to the matter, show that it merely presents a question of whether or not, under the facts of the entire case, there was an abuse of its discretion upon the part of the court in such refusal, and does not point out upon the face of the record such an error as, being readily seen, lies at the base of the proceeding and affects the judgment necessarily. Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85; Ry. Co. v. Wheat, 173 S. W. 974; Needham v. Cooney, 173 S. W. 979.

The sixth and last one requiring notice presents the overruling of appellant’s original motion for new trial as error, in that the verdict and judgment were not sustained by the evidence touching the charges of fraud in a number of enumerated particulars. This upon its face invites an examination of the entire record to determine the sufficiency of the evidence upon each of the elements of fraud specified, and so falls without the pale of Judge Brown’s definition of “fundamental error” in Houston Oil Co. v. Kimball, 122 S. W. 533, supra; and, since the record before us shows that none of the matters assigned as errors in this court were presented to the court below in either of the motions for new trial, such of them as do not comprehend fundamental error will be treated as waived. This was a jury trial, where the filing of a motion for a new trial was a prerequisite to the right of appeal, and in such cases rule 24 (142 S. W. xii) requires that the assignments of error be distinctly set forth in the motion for new trial, and, if not so done, will be considered as waived. Our Supreme Court, in recently construing R. S. art. 1612, recognizes the continuing effect of this rule as unimpaired, and as unaffected by its holding in that case. H. & S. Eng. Co. v. Turney (Sup.) 203 S. W. 595 (5). It follows that appellant is not entitled to present in this court the alleged grounds of error specified in any assignments other than the first two, and they are, accordingly, not further considered.

This strips the decks, we think, to the single question of whether or not there was sufficient pleading to support the judgment as rendered, and the first two assignments in the brief at least serve the purpose of furnishing appellant a machine gun nest from whence to bombard the judgment in that respect. As already stated, this proceeding was one in equity, brought by the wife, or, to be accurate, by one who had been the wife at the time the matters she complained of had been determined, and who, it is apprehended, occupied no different position so far as the rights asserted were concerned, against the man who was then her husband, for the simple purpose of having the former disposition of her half portion of their community estate which the court had sanctioned by its decree so overhauled and done over again as to make that portion a full half, instead of only the small part thereof she alleged she really got. That is the long and short of her cause of action in this proceeding, however much refinement of description and elaborate designation of character there may be given it. To accomplish that plain and direct purpose, she went into the. same court that had so crystallized what she claimed was a fraudulent imposition upon both it and herself into one of its decrees, haled the. same man who had procured that decree before its bar, and ashed that the court's broad equity powers be so exercised as to give her relief. She gave as a reason that he had, after the filing and pending determination of her first suit, in order to procure and induce the particular disposition that was in fact made of it as a result of his fraud, concealed from her the true condition of the community estate other than the lots she was to get the life estate interest in, and falsely represented to and beguiled her into believing that it was all but insolvent and would all have to be sold to pay the debts against it; whereas, it was at that very time of the reasonable value of $45,000, as was well known to him but not to her.

The allegations being, as stated, that these representations and this concealment of the community property had occurred after a division of it had become the only issue in a suit between them to bring that about, and that they were perpetrated by appellant for the purpose and with the result of procuring for himself an unfair portion, it is beside the mark to contend, as he now does in his assault upon the sufficiency of the averment of concealment, that the parties were then husband and wife, with the right of possession, management, and control of their common property by statute vested in him, and that he was therefore under no legal obligation to disclose to her its true condition. That might be true so long as their marital partnership was a going concern, but certainly could not continue after the even tenor of its way had been arrested by her suit to have it terminated and its acquisitions equitably divided between them.

But, pleading further, she described in detail the community property, both real and personal, as it stood on the date of the former decree, in so far as she had since been able to ascertain, stated its money value item by item and in the aggregate, and recited first that not only had the record title and the actual care, control, and custody of it all prior thereto been in appellant, but that the court had on that date by its judgment specifically divested her of all interest and right of possession therein and vested it in the appellant. She then declared her right to have a full accounting made to the same court of equity for the entire property as of the date of July 9, 1914, which necessarily comprehended a showing as to what disposition had in the meantime been made of it, attaching as a part of her bill a full copy of the court’s former decree. Nor must it be overlooked that the accounting here declared upon and prayed for ¡was necessarily not one merely of money debits and credits as in ordinary commercial copartnerships, but one that comprehended and sought a determination of the relative standing of both members thereof in the far broader relationship of husband and wife, and in its entire holdings of property, without distinction as to kind or character. She further declared herself entitled in dollars and cents to one-half of the total given value of the community estate — that is, $48,500 — as her just portion, or to $24,250, It is true she repeatedly declared herself entitled to have the former decree set aside and another partition and division awarded her, and prayed for that; but she did not, in our opinion, as appellant vigorously contends, in effect limit the right declared upon to one seeking merely to set aside that judgment and have an entirely new partition and division of the property in kind ordered, but set up all the facts and equities between herself and her former husband, and then asked the court in the exercise of its general equity powers to right the wrong so done her, in the following closing prayer:

“Wherefore, plaintiff sues and prays due process of law to defendant, and that the decree in cause No. 30,635, entitled Virginia Celli v. Frank Celli, in this court, be set aside, avoided, or modified, and this cause reinstated on the docket, and that the defendant be required to account to the court and file an inventory of all of the community estate as it existed on the 9 th day of July, 1914, and for the appointment of an auditor * * * and of a receiver of said community estate, and for a partition and division of all of the community estate, and for the sum of five hundred dollars ($500.00) of the separate estate of plaintiff, held by defendant ; and she further prays that the court issue a writ of injunction, restraining defendant from applying for letters of guardianship upon the persons and estates of her children, and from disturbing her in the collection of rents from her estate and from threatening and annoying her by seeking to take from her her children, and for such other and further relief, both general and special, as in equity she may be entitled to, and in duty bound will ever pray.”

It is so well settled in Texas as to be axiomatic and not to require the citation of authorities that pleadings not objected to below, except by the interposition of a general demurrer, as was the case here, will, in aid of their sufficiency, as a whole, be given upon appeal the broadest and most liberal construction consistent with their terms, every reasonable intendment being indulged in their favor; and especially is this rule applicable, we think, to the provisions of a bill in equity. It is true that particular averments of doubtful meaning, at least in pleadings at law, must be construed against the pleader, as was held in Webb County v. Board, 95 Tex. 131, 65 S. W. 878, and Snipes v. Bomar, etc., Co., 106 Tex. 181, 161 S. W. 1. But not so, it seems, when the construction is upon a bill in equity as a whole. In that situation the rule is thus stated in Ruling Case Law, vol. 10, p. 426, § 185:

“Possibly, however, a distinction may be pointed out between, on the one hand, the construction of the bill considered as a whole, that is, with regard to the type of the bill and the nature of the equitable right involved, and, on the other hand, the interpretation of particular ambiguous allegations in the bill. It is certain that, in respect to the large features of the bill, it will be liberally construed so as to give effect to any real equity involved in the case. As to inherently ambiguous clauses and allegations, it may be conceded that the court cannot be so liberal.”

Indeed, we have a statute outlining the broad equity powers of our district courts in this very kind of cases. R. S. art. 4634, which is as follows:

“The court pronouncing a decree of divorce from the bonds of matrimony shall also decree and order a division of the estate of the parties in such a way as to the court shall seem just and right, having due regard to the rights of each party and their children, if any; provided, however, that nothing herein contained shall be construed to compel either party to divest himself or herself of the title to real estate.”

When confronted with this statute, however, appellant replies that it simply defines the power of the court in such cases and does not undertake to prescribe the requisites of the pleadings necessary to invoke that power. He concedes the power of the court to do exactly what it did do in this instance, nor does he in this connection contend that the original decree was not properly set aside upon the proof of fraud made, nor yet that the money judgment against him for $13,741.41 was excessive in amount, inequitable, or for any reason unjust, but only that the personal judgment was not such as could be properly rendered under the pleadings and the prayer for relief. It may be freely conceded that in cases controlled by this statute it is still essential to comply with the fundamental rules of pleading, and that the cases of Long v. Long, 29 Tex. Civ. App. 536, 69 S. W. 428, and Bohan v. Bohan, 56 S. W. 959, so held; but that does not inveigh against the further, as we think, obvious conclusion that it is a clear declaration of the liberal policy of our law concerning the division of the community estate between those who have just been divorced, and should serve as a light and guide to the courts in likewise so construing the pleadings of the one invoking its provisions as to give effect to any real equities therein presented. In fact, we are not without an authoritative precedent from our own Supreme Court for that precise view, for in the early case of Simons v. Simons, 23 Tex. 344, when the statute was in all material respects the same as now, that court gave its unqualified sanction to the very kind of personal judgment that was rendered here, and that upon what, in effect at least, was practically the same general state of the pleadings. There, also, the wife prayed for an inventory of the community property, which, as in the case at bar, consisted of both real estate and personalty, and “that one-half of it might be adjudged to her.” The jury in accordance with the instructions of the court returned a schedule of all the common property, with their valuation thereof, which included two separately valued pieces of real estate, one of them, the family residence. The court upon that verdict rendered a personal judgment in favor of the wife for one-half of the net value in money of the community property, together with a lien upon all of the husband’s property to indemnify her against any outstanding community debts. In result and effect, we are unable to perceive a difference between that case and this. The court, in there commenting upon the purpose of the statute, said:

“This provision, taken as a whole, evidently intends to invest the district court with the power to exercise, within reasonable limits, a discretion in making partition of property between persons who are divorced by the court from the bonds of matrimony. The object of the statute seems to be to confer authority upon the district court to make such a decree as will attain right and justice between the parties, under the circumstances which may attend the particular case, and under the limitation imposed by the statute itself.”

There are many other cases, upon different states of fact and pleading, applying the broad authority conferred by this statute, among them Owens v. Owens, 40 Tex. Civ. App. 641, 90 S. W. 664; Huntsman v. Huntsman, 147 S. W. 351; Moor v. Moor, 24 Tex. Civ. App. 150, 57 S. W. 996; and Rice v. Rice, 21 Tex. 68. But under the stated concessions of appellant, and as they do not turn upon the sufficiency of just such a pleading as was here involved, there need be no further elaboration of them.

Under these pleadings, if, after indulging every reasonable intendment in their favor, the test of sufficiency he what the adverse party is thereby put on notice of, as is suggested in Snipes v. Oil Co., 106 Tex. at page 184, 161 S. W. 1, supra, can it be said that Celli was not apprised of exactly what he would have to meet? Under the declaration of the right to and the demand and prayer for a general accounting as to the existence, condition, and value of the entire community estate, both real and personal, all of which the broad allegations of the bill embraced, did he not know that he would have to show the status in these detailed respects of the real estate, as well as of the personalty, upon both the date of the former and of the present trials? And if he did so know and would have had to so account, how can it still be said that he was also entitled to be further specifically charged with having either sold or converted to his own exclusive use and benefit the real estate? What more, as a matter of pleading, would he have known about the case he must meet, if he had been thus additionally charged?

It seems to us that, under the broad scope of the pleadings here, the prayer for general relief in equity, despite the special prayer for a particular remedy not awarded, and the ample support in the proof of the fraud the jury found to have been practiced, there was an adequate basis for the judgment rendered. R. S. art. 1827; Trammell v. Watson, 25 Tex. Supp. 216; Silberberg v. Pearson, 75 Tex. 290, 12 S. W. 850; Lee v. Boutwell, 44 Tex. 154; Farrar v. Beeman, 63 Tex. 180; McMurray v. McMurray, 67 Tex. 667, 4 S. W. 357.

This member of the court entertains the further view that, although the petition did not in so many words allege conversion of the community property by appellant, it did state facts from which that result was a legitimate inference; and as the undisputed proof upon the trial — his own testimony, in fact— showed that Celli had not only converted it, but had reduced it to money, the court was not without the consequent authority to render a personal judgment against him for one-half of its properly ascertained value. But the inability of either of his associates to agree with him in this conclusion, thereby reducing it to an individual opinion only, restrains extended statement of it.

The previously stated conclusions of a majority of the court, however, require the affirmance of the trial court’s judgment, and that order has accordingly been entered. Chief Justice PLEASANTS' dissents and will write his views.

Affirmed.

PLEASANTS, C. J.

(dissenting). Being

unable to agree with my Associates in the conclusion that the judgment of. the trial court should be affirmed in its entirety, I will, in compliance with the statute, as briefly as I can, state the grounds of my dissent.

I fully concur in the holding of my Associates that, for the reasons stated in the opinion of the majority, none of appellant’s assignments of error can be sustained unless some fundamental error is pointed out, and we all agree that, if the pleading is insufficient to support the judgment, fundamental error is shown, and the judgment cannot be affirmed.

In my opinion this suit, in so far as the purpose is to effect a division of the common property of plaintiff and defendant, is governed by the same rules of pleading that have been uniformly applied by our courts in partition suits, and the question of whether the plaintiff’s petition is sufficient to entitle her to recover the value of her one-half of the property owned in common by her and the defendant, which the evidence shows has been sold by the defendant since the decree of divorce was granted, is in no way affected by the equitable nature of the suit, nor by the provisions of the statute quoted in the opinion of the majority, which- authorizes a court “pronouncing a decree of divorce from the bonds of matrimony to order a division of the estate of the parties in such way as to the court shall seem just and right, having due regard to the rights of each party and their children, if any.” No decree of divorce was pronounced in this case, and therefore this statute, the purpose of which was to broaden in divorce proceedings the general equitable powers of the court in making partition of partnership property, primarily for the better protection of the children, the fruits of an unhappy marriage, and also to authorize the court, as far as right and justice should permit, to take into consideration, in dividing the community property, the relative necessities of the parties and the innocence of the one party and the culpability of the other in the severing of the marital relations, has no application. The decree of divorce was granted nearly two years before this suit was brought, and that decree was not sought to be disturbed by this proceeding; the only portion of the original judgment in which the divorce was granted which plaintiff asked to have set aside being that awarding to defendant all of the community property belonging to the parties, except the lots given the children in which plaintiff was awarded a life estate. The rights of the children were fully protected by the original decree and by the judgment in this case, and appellant does not complain of that portion of the judgment. The parties have both remarried, and the question of which of the two was more culpable in making their divorce necessary was not an issue in this suit and could not be now inquired into with profit or propriety. Such heing the case, it seems clear to me that the statute above quoted can have no possible bearing upon the question presented by this appeal. The suit is simply one to set aside a judgment disposing of property rights of the parties on the ground that such judgment was obtained by fraudulent misrepresentations, and to partition the specific property disposed of by said fraudulent judgment and enumerated and described in the petition in this. suit. The petition of the plaintiff, after alleging the fraudulent misrepresentations of the defendant by which she was induced to sign the agreement upon which the former judgment of July 9, 1914, disposing of her property rights, was based, contains the following:

“Plaintiff shows that at the time of the above statements and representations by defendant, through his agent, O. Del Papa, to wit, on or about the 9th day of June, 1914, plaintiff and defendant were husband and wife, having been married on the - day of June, 1904, and had acquired the following described property with community funds:
“Lot fourteen and the west half of thirteen (L. 14 & W. ½ 13) in the northwest quarter of outlot ninety-one (91) and improvements, purchased with community funds on February 1, 1906, from George W. Wythe.
“The east half of lot thirteen and- the west half of lot twelve (E. ½ L. 13 and W. ½ L. 12) and improvements, in the northwest quarter of outlot ninety-one (¿1) in the city and county of Galveston, purchased with community funds on April 29, 1907, from Mrs. N. F. Branch.
“Lot No. three (3), in the southwest quarter of outlot ninety-one (91), purchased with community funds on December 1, 1910, from Mrs. Mary A. O’Shaugnessy.
“Lot four (4) and improvements, in the southwest quarter of outlot ninety-one (91) in the city and county of Galveston, purchased with community funds on January 15, 1912, from Jessie I. May.
“A saloon at 2402 Postoffice street, furniture, fixtures, leasehold and license, acquired about the year 1912, the exact date of which is not known, with community funds.
“A one-story brick building in the rear of 2402 Postoffice, acquired about the year 1913, with community funds.
“An undivided one-half interest and partnership acquired from L. W. Levy & Co., in a wholesale liquor business at 2401 Strand street, with community funds on or about the- day of -, 19 — , which partnership was thereafter conducted under the name of Celli & Del Papa, said plaintiff and defendant having an undivided one-half interest in said partnership and its assets.
“One automobile, purchased during the year 1913, with community funds.
“And plaintiff further shows:
“That lots 13 and 14 and the West half of 12 in the northwest quarter of outlot 91 and improvements at the above dates are and were of the reasonable value of $10,000.
“That lots 3 and 4 in the southwest" quarter of outlot 91 and improvements were of the reasonable value of $5,500.
“That the saloon at No. 2402 Postoffice street, including fixtures, lease,' and license, were of the value of $4,500.
“That the brick building in the rear of 2402 Postoffice street was and is of the reasonable value of $2,000.
“That the automobile was and is of the reasonable value of $1,500.
“That the horse and buggy were and are of the reasonable value of $150.
“That the partnership interest of one-half in the firm of Celli & Del Papa and the assets of said business, as plaintiff is now informed and believes, is and was of the reasonable value of $25,000.
‘“That plaintiff has no information as to the community funds on deposit in bank and has been unable to obtain any information concerning same.
“That the community estate was of the reasonable value of about $48,500, and plaintiff’s one-lialf was of the reasonable value of about $24,250, to which she was entitled.”

Then follow allegations of plaintiff’s ignorance, at the time the agreement was made, of what property was owned by the community estate and of the debts due by the estate and her reliance upon the representations made by the defendant. She also alleges her ignorance of the contents of the deed by which she conveyed her interest in the homestead to the children of herself and defendant, only reserving to herself a life estate therein as long as she should remain unmarried, and the further misrepresentations of the defendant by which she was made to believe that in signing said deed she was executing a will devising her interest in the property to her children.

The further allegations of the petition in any way material to questions We are considering are as follows:

“Plaintiff avers that said agreement induced by defendant’s said false and fraudulent representations and without consideration to her and said deed and decree based thereon were inequitable and unfair and unjust to her, and she has been deprived of her proper share in said community estate thereby, and said deed and decree, in so far as it disposed of her community estate and restricted her right to marry with penalty of forfeiture of her estate, be set aside, avoided, or modified, and that defendant be required to account for and file inventory of all the community estate owned by plaintiff and defendant and controlled by defendant on July 9, 1914, and that an auditor be appointed to audit the accounts of defendant, and that a fair and equitable division and partition of the said community property be had and plaintiff’s portion awarded her.”

The prayer of the petition is correctly copied in the opinion of the majority.

From the foregoing allegations and the prayer of the petition it is thus apparent that the suit is one for partition of specific property which the plaintiff alleges is the common property of herself and defendant. There is no allegation from which it can be infeimed directly or indirectly, or that intimates, that the property described in the petition and sought to be partitioned has been sold or disposed of by the defendant, and, in the absence of such allegation, it matters not what the evidence may have shown, plaintiff was not entitled to recover ■the value of the property. It is hardly necessary to cite authority in support of the proposition that evidence without pleading to support it cannot form the basis of a judgment, and that, to entitle plaintiff to recover the value of her one-half of the community property of herself and defendant, it was just as necessary to allege, as it was to prove, that defendant had sold or converted said property. No rule of decision is more established in the jurisprudence of this state.

The opinion of the majority, while recognizing this rule, refuses to apply it in this case, on the ground, if I correctly understand the opinion, that plaintiff’s petition contains sufficient allegations, in view of the character of the suit and the provisions of the statute above quoted, to support the judgment.

If this statute could be held applicáble in this case, it could not affect the question of the sufficiency of the pleading, because it cannot be construed as authorizing the court in a divorce case to disregard all rules of pleading and render a judgment without any allegations in the petition of facts entitling the plaintiff to such judgment.

The statement of the allegations of the petition made in opinion of the majority are merely general conclusions of the writer, no part of the petition being set out in the opinion except the prayer. As before stated, I have set out above every material allegation of the petition in regard to the property or. property rights claimed by the plaintiff, and no case can be found, I care not what may have been the character of the suit, which holds that these allegations are sufficient to entitle a plaintiff suing for partition of partnership or community property specifically described in the petition to recover the value of the property if the proof upon the trial of the case shows that it has been sold by the defendant.

The case of Simons v. Simons, 23 Tex. 344, cited and relied on by the majority, does not sustain their contention. The appellant’s brief in that case, as shown in the report of the case, assailed the judgment upon three grounds only:

“First. That the trial court erred in converting the proceeds of the sale of his (appellant’s) separate property into community property. Second. In making the increase of lands (his separate property) common property. Third. In giving to the defendant a larger amount than the verdict would warrant.”

It thus appears that no question of the sufficiency of the pleading was raised in the case. All that was necessary to an understanding of the question discussed in the opinion was to state that the suit was one for divorce and division of community property and for alimony, and this was all that the report shows as to the pleading, except that there was a prayer that defendant be required to file an inventory of the community property. All that the case decides is that none of the three objections to the judgment presented by the appellant could be sustained. I cannot see that this decision has any bearing upon the question presented by this appeal.

I think the judgment of the court below should be affirmed in so far as it sets aside the former judgment disposing of plaintiff’s interest in the community property and fixes the rights of plaintiff and her children in the homestead property, but that portion of the judgment adjudging that plaintiff recover of defendant the sum of $13,641.41 should be reversed and remanded for a new trial on that issue.
      @=For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    TEMPLETON v. CITY OF WELLINGTON.
    (No. 1433.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 11, 1918.)
    1. Municipal Corporations <©=3682(2) — Exclusive FRANCHISE FOB WATER SYSTEM— Validity.
    Petition, alleging that defendant city granted to a named company exclusive franchise for 25 years to use streets and alleys for constructing, equipping, and operating a water system, and that plaintiff became owner of the system, was, in so far as it sought recovery for breach of contract, subject to special exceptions ; the grant of exclusive privilege being void.
    2. Waters and Water Courses <©=>210— Water Franchise — Injury to Pipes— Pleading.
    In an action against city for ploughing up plaintiff’s pipe lines, held that allegation and proof of contract granting exclusive privilege to operate water system was unnecessary to give plaintiff a remedy for conversion or wrongful injury to property, so that court erred in sustaining general exception to petition and entering judjgment thereon.
    3. Waters and Water Courses <©=>210— Waterworks Franchise — Destruction op Works.
    While no action will lie if in order to maintain it plaintiff requires aid from an illegal transaction, the fact that defendant city permitted water system equipment in its streets, whether under a void contract or by permission, did not authorize a wanton or willful injury to it.
    4. Pleading <S=>204(2) — Sufficiency on General Demurrer.
    While special exceptions were properly sustained to that part of petition seeking a recovery for breach of contract, if, after eliminating •that feature, a cause was stated against defendant city for a conversion and for damages inflicted by willful acts or negligence, a general demurrer should not have been sustained.
    5. Pleading <©=>228 — Defects—Special Exceptions.
    If the petition shows a good cause, but defectively stated, or if there is an omission of a formal averment, the defect must be pointed out by special exception.
    Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.
    Action by R. H. Templeton against the City of Wellington. From judgment sustaining general and special exceptions to first amended original petition, plaintiff appeals.
    Reversed and remanded.
    R. H. Templeton, of Wellington, and Jos. H. Aynesworth, of Childress, for appellant. ■
    C. C. Small, J. C. Mahan, and R. H. Cocke, Jr., all of Wellington, for appellee.
   HUFF, C. J.

This is an appeal from a judgment sustaining general and special exceptions to the appellant Templeton’s first amended original petition. Both parties apparently treat the case as having been disposed of by the general exception. It is difficult to determine just what cause of action appellant set up by his petition. It is asserted in this court by appellant that he was suing for a tort, but part of his petition clearly places his right of recovery upon a breach of a contract. In substance, the petition alleges that the city of Wellington entered into a contract with the Wellington Water, Light &> Ice Company February 23, 1310, wherein it granted to said company a franchise to use the street and alleys of the town for the purpose of constructing, equipping, and operating a water system, etc., in the town, setting out in the petition a copy of the contract, one clause of which is as follows:

“The said company shall have the said franchise for and during 25 years from this date, exclusive to it and to it alone for any like purpose or purposes.”

After the contract was entered into it is alleged the water company began to construct a system of waterworks, putting down wells, laying water mains, etc., and that on October 26, 1915, the appellant, in the course of trade, became owner of the system, and, relying on the contract and franchise, he made additional improvements and extensions. We believe it may be stated that it is alleged, inferentially at least, that the town permitted the use of the street and for a long time used the water of the company for public purposes or uses. It is alleged that the town, on or about the 26th day of October, 1915, breached its contract with the company by voting bonds to the extent of $27,500 and with the proceeds of the sale erecting a municipal water plant, ¿hereby becoming competitor to appellant, and he again specifically alleges:

“That said town of Wellington, on August 16, 1915, voted said bonds, and from that began making arrangements for putting in a system of waterworks in said town, which prevented plaintiff from further improving his system because with the city as his competitor, to which plaintiff hadi to contribute as a property owner, made it impossible to further improve said system and an entire loss of plaintiff’s system.”

It is alleged that the cost or the value of the system was $15,000. The above allegations, however, are followed by the general allegation:

“Plaintiff further says that he offered to sell his system, or any part thereof, to defendant, but defendant refused to buy same or any part thereof, and proceeded to destroy and confiscate same to its own use and benefit.”

As part of his system he shows the erection of water tanks, putting down of wells, the laying of mains and pipe lines, which were made of cypress, and which, if kept filled with water, would last a long time ;■ that the defendant ploughed up his pipe lines across streets and disconnected its line from his customers and caused great quantities of water to waste; that the pipes so ploughed up and broken up and the repair to same was $50, and the water wasted was of the value of $25. That without plaintiff’s permission defendant proceeded to disconnect all customers from plaintiff and used and appropriated the lines of pipe to defendant’s own use and benefit, some 32 in number, of the value of $160; that by taking up and breaking the pipe lines there will be one mile thereof, which is of the value of $5,000 without water in them, which renders them useless, and will render them valueless. He, however, alleges that the pipes or system cannot be repaired except at great cost. Unions would have to be procured and many joints replaced, and by reason of the kind of pipe and its location plaintiff has been damaged $5,000. It is alleged that in time of fire defendant would open plaintiff’s mains and use great quantities of water, which it would not pay for or offer to do so, alleging the quantity so appropriated to be not less than 50,000 gallons, worth 50 cents per 1,000 gallons.

The first exception is general. (2) Special exception is to the effect that it is not alleged that the town was empowered to enter into a contract to furnish water to its own inhabitants nor to grant franchises or privileges to any person or corporation. (3) That plaintiff was not shown to be connected with the franchise or granted the right or privilege claimed, and that the contract shows on its face it could not be transferred. (4) That there is no allegation showing that the water company furnished the city with light or ice within three years, as provided by the contract, and in effect the exception is that this was a condition precedent to make the contract binding. (5) That the contract as alleged shows that it was void in that it is exclusive and creates a monopoly and establishes a perpetuity.

In appellant’s brief he disclaims any purpose to recover upon a breach, but says only that such allegations were made as explanatory or by way of inducement. We take it that he concedes the contract as alleged is void under the Constitution of this state. To that part of the petition which apparently seeks a recovery upon a breach of the contract we think the trial court correct in his ruling. The special exceptions are evidently addressed to that portion of the pleadings. Our Supreme Court has held the granting of an exclusive right of way to lay piping for supplying the town with water is void. Giving an exclusive privilege for a period of 25 years of farnishing water to the city or its inhabitants has been held contrary to the provision of the Constitution against monopoly. Edwards v. Jennings, 89 Tex. 618, 35 S. W. 1053; Altgelt v. City of San Antonio, 81 Tex. 436, 17 S. W. 75, 13 L. R. A. 383; City of Austin v. Nalle, 85 Tex. 520, 22 S. W. 668, 960; City of Brenham v. Brenham Water Co., 67 Tex. 542, 4 S. W. 143.

This action, however, has another feature to it, in that it is in its nature an action for conversion of certain property and for damages to certain property by wrongful acts of the town authorities and one item for water used and unpaid for. While we understand the contract as alleged could not be enforced or damage recovered for its breach, we yet do not think the city would have the right to convert the property of appellant or to injure it.

It doubtless is true as a principle of law that no action will lie if in order to maintain it plaintiff requires aid from an illegal transaction, or is under the necessity of resting his cause upon an illegal agreement to which he is a party. One who violates the law must suffer its penalty, but in all other respects he is under its protection and entitled to its remedies. The allegation and proof of the contract was unnecessary to give the plaintiff the remedy the law establishes for conversion or wrongful injury of the property. The fact that the town permitted the property in its streets, whether under a void contract or by permission, would not authorize a wanton or willful injury to it. Railway Co. v. Johnson, 71 Tex. 619, 9 S. W. 603, 1 L. R. A. 730; same case, 25 S. W. 1015; Railway Co. v. Parker, 50 Tex. 330; Coppedge v. M. K. Goetz Brewing Co., 67 Kan. 851, 73 Pac. 908; Brown v. Lynn, 31 Pa. 510, 72 Am. Dec. 768; Welch v. Wesson, 6 Gray (Mass.) 505. This court has practically announced the same principle of law in a case where it was alleged that the shipper and railroad entered into a contract of shipment in violation of the Interstate Commerce Act. Railway Co. v. Manby, No. 1431, 207 S. W. 157, not yet officially reported.

We shall not at this time discuss the question whether appellant could recover without showing his contract as a basis for recovering. Ordinarily the contract would not be necessary to show title to the thing injured or converted, or to prove the injury or conversion. As to the water used by the town, our Supreme Court seems to recognize the right of the water company to recover, even if the contract with the city created a monopoly. Especially is this true if the water was used before the town repudiated the right of the water company in the street under the contract. City of Tyler v. Jester, 97 Tex. 344, 78 S. W. 1058; Brenham v. Water Co., 67 Tex. 542, 4 S. W. 143.

We think the special exceptions were properly sustained to that part of the petition seeking a recovery for breach of the contract, but if, after eliminating that feature, a cause was stated for a conversion, and for damages inflicted by wrongful acts or negligence, a general demurrer should not have been sustained or judgment rendered against appellant upon the pleadings. Many of the objections urged in this court by appellee to the courts setting up damages and for conversion, etc., would be good upon special exceptions, but nearly all relate to the form of the allegation, and not to the substance.

If the petition shows a good cause, but defectively stated, or if there is an omission of a formal averment, the defect must be pointed out by special exception. This rule, of course, is known to counsel, but its application to particular pleadings is sometimes found difficult. Without discussing the particular allegations which we believe state a cause of action, we have arrived at the conclusion upon the whole that a general exception should not have been sustained, and judgment rendered thereon. The construction of the pleadings is such that the trial court in the necessary cursory consideration of the question would likely overlook the facts stating the cause, especially as the illegal contract and right claimed thereunder appear to be the dominating feature of the pleading and is so interwoven with other matters that it is hard to decipher that this is really an action sounding in tort. We have concluded, however, that we should reverse the judgment and remand the cause.

Reversed and remanded.
      <©cs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DANE, J.

text:
    MARTIN v. MARTIN.
    (No. 7627.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 21, 1918.
    Rehearing Denied Dec. 12, 1918.)
    1. Gifts <S=»25 — Pabol Gifts of Land.
    It is necessary to the validity of a parol gift of land that possession be delivered and valuable improvements made with the knowledge or consent of the donor, and the mere taking of possession and making of improvements of insignificant value is not sufficient where the value of the rents exceeds that of the improvements.
    2. Gifts <S=>49(4) — Paeol Gifts of Land-Evidence.
    One seeking to recover title to land upon an alleged parol gift, as against the holder of a legal record title, must establish, by full, clear, and satisfactory evidence, a gift of the land, the terms and conditions of which must be shown free from ambiguity, and not merely an expression of an intent to make the gift at a future time.
    3. Gifts <3=49(4) — ILand—Evidence.
    y/ Evidence held insufficient to establish a pa-rol gift of land relied on by defendant, the terms of the gift not being clearly shown, and no making of improvements of substantial value being disclosed.
    4. Gifts <3=16 — Validity—Execution.

      V To constitute a valid gift inter vivos, there must be a gratuitous and absolute transfer of the property from the donor, taking effect immediately, and fully executed by delivery and acceptance.
    5. Specific Performance <3=47 — Improvements.

      v When a purchaser by parol has been fully compensated for his improvements, or has gained more by his possession than he has expended in improvements, they will not avail him as a ground for specific execution.
    (j. Gifts <3=49(1) — Parol Gifts — Evidence.
    */ Alleged parol gifts asserted for the first time after the death of the donor, to be upheld must be supported by evidence that is full, clear, and free from uncertainty.
    Appeal from District Court, Leon County; S. W. Dean, Judge.
    Suit in trespass to try a title by Mrs. Mary A. Martin, as executrix of the last will of William Martin, deceased, against J. M. Martin, who filed a cross-bill. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    Graves & Houtchens, of Ft. Worth, for appellant.
    J. M. Chathah, Wm. Watson, and Joe H. Seale, all of Centerville, for appellee.
   DANE, J.

This is a suit in trespass to try title to 998¼ acres of land in Leon county, Tex., brought by appellant, Mary A. Martin, as executrix of the last will of William Martin, deceased, against J. M. Martin, generally called “Jess Martin.”

Defendant answered by general denial, plea of not guilty, and by cross-bill, in which he alleged that in the month of August, 1913, his father, William Martin, deceased, had made a parol gift to him of the specific 160 acres of land out of the said 998½ acres of land sued for by Mrs. Martin, which is described in his cross-bill. He further alleged that, relying upon said gift, he had entered upon said 160-acre tract, and had made valuable improvements thereon in good faith, and therefore he was the equitable owner of the same, for the title to which he prayed judgment.

The cause was tried before the court without a jury, and judgment was rendered in favor of defendant for the 160 acres of land claimed by him, said judgment reciting, however, that said 160 acres was to be subject to the payment of one-sixth of an indebtedness of about $8,000 which was owing by William Martin as a part of the purchase money for said 998¼ acres.

- 'The main and controlling question presented by this appeal, and which if decided j in favor of appellant will render the discus-' sion of the one other assignment unnecessary, is, Was the evidence sufficient to support the judgment of the trial court confirming the alleged parol gift of William Martin, deceased, to appellee, Jess Martin?

Appellant’s proposition is, in effect, that one who seeks to recover title to land from another who holds the legal record title, solely upon a claim of parol gift, must establish ¡ by clear and satisfactory evidence, free from : ambiguity and doubt, first, the gift in. clear and unequivocal terms; second, that he entered into possession of the land under and by virtue of the gift; and, third, that after such entry he did, in good faith and because: of said gift, make permanent and valuable improvements on said land; }and that as ap-pellee relied for his title tó the land solely upon the alleged parol gift, and as the evidence wholly fails to establish the three essential elements of a parol gift which would vest title to said land in him, the trial court erred in divesting Mrs. Martin of the legal title thereto and vesting the same in appellee by a judgment in his favor.

The undisputed evidence shows that the 998½ acres were conveyed to William Martin, deceased, in the spring of 1913; that it was the community property of himself and his wife, Mary A. Martin, appellant herein, and that they held a fee-simple title thereto; that they moved upon said land in 1913 and resided thereon as their homestead; that as part payment of the purchase price of the land William Martin assumed the payment of an indebtedness of his vendor for the sum of $8,000, which was a lien upon the land, no part of which had been paid at the date of the trial of this cause. It also shows that William Martin and wife, Mary A. Martin, had seven children, four daughters and three sons, Jess, the appellee, being one of them. All' the daughters, Jess, and one of the other sons were married and lived separate and apart from their parents. All the sons moved upon the land with their parents. Some time after moving upon the land Jess, with his family, moved into and occupied a tenant house on the premises as a tenant of his father during the year 1913, said house so occupied by him being on the 160 acres claimed by him. William Martin, the father, did considerable amount of improving on the land, such as clearing land and putting much of it into a state of cultivation. A part of the land so cleared and reduced to a state of cultivation was by help employed and paid for by William Martin, but the most of it was done upon agreement with the parties who cleared the land that such parties should have the crops grown upon the land so cleared by: them, respectively, free of rent for one year as their compensation. All three sons, as well as other renters, did some of the clearing. At the time of the purchase of the 998⅛ acres there was only about 20 acres of the 160 acres claimed by appellee cleared, and at the time of the death of William Martin, in June, 1916, there was cleared on said 160-acre tract about 100 acres. The clearing done by appellee was not all on said 160 acres, but some of it was on other parts of the 998¾ acres. (During the life of William Martin he rented the larger portion of the cleared land on said 160-acre tract to tenants other than appellee, and collected the rents therefor, and during such time appellee cultivated some of the land on said 160 acres and some on other parts of the land. Up to the time of the death of William Martin he had charge and control of the entire 998¼ acres, and made all the contracts of rental with the several tenants and collected and retained the rents due. William Martin paid all taxes due on the entire 998½ acres and the interest on the $8,000 debt. William Martin died on the 26th day of June, 1916, and left a will by the terms of which he devised and bequeathed to his wife, Mary A. Martin, all Ms estate, both real and personal, which will was duly probated in August of the same year. Shortly after the probate of the will appellee notified Ms mother, Mary A. Martin, that he claimed the 160 acres, now claimed by Mm, under a parol gift made to him by his deceased father. He never at any time before his father’s death asserted any claim to said 160 acres as far as shown by the evidence. Appellee paid rent to his mother, for such land as he cultivated upon said 160 acres, for the year 1916, after the death of his father. The rental value of the 160 acres for 1914, 1915, and 1916 was about $750 to $800.)

The material testimony offered by appellee to establish the parol gift alleged by Mm, and to prove the value of improvements made on the land claimed by him, was substantially as follows:

Mrs. J. M. Martin, wife of appellee, testified:

“I heard Mr. Martin talking with Jess, and explaining where his lines were, and that his land begins with what is known as the old. Bill Brown house, and runs 486 yards north and then .east, parallel with the south line of the farm, far enough to make 160 acres. I heard Mr. Martin tell him that in the fall after we moved there in the summer. Mrs. Martin was with her daughter, Mrs. Grace Hooper, in Archer county at the time. I heard the conversation between my husband and his father, and we were living at the place we now live. Mr. Martin and Jess made the ‘A’ stick, and went to the corner, and then went down to south line, measuring it, and then came to the house and had that conversation in which Blr. Martin told Jess that that was his land and his line as near as he could get to it with a yardstick like that.”

Bum Jones, witness for appellee, testified:

“Mr. William Martin had a conversation with me and Blr. Jess and others in which he pointed out certain land. One day me and him and Mr. Jess Martin and Sam Roberts was going down the road from the house to the water gap from Mr. William Martin’s house. We was going down there, and he had' an ax on his shoulder, and got to a tree, and he spoke and says, ‘Here is where your line comes Jess on this tree,’ and he cut on it with an ax. Jess’ land was on the right-hand side of the tree from the house; that was the south side of the turning row. The tree that he hacked was on the line with the turning row; that is, the turning row that was down in the field. Blr. Jess had some clearing down over there close to my brother-in-law, at the corner and near Mr. Jess’ house.”

Wiley Williams, for appellee, testified:

“I did some work for Mr. Blartin about three or four years ago, in the spring of the year, such as cutting fence posts for fencing. I had a conversation with Mr. Martin with reference to his land while he and I was splitting some posts. He got to talking about the trees being so crooked, and he says that if he could get Jess to agree T would sell this land and put the money in my pocket and leave here.’ I asked' him ’why; and he. said, ‘Well, every tree I have struck since I have been here is crooked,’ and he reckon everything else was crooked. He said that if he could get Jess to agree they would sell the land.”

Lum Colbert, witness for appellee, testified that a short while before William Martin’s death he (witness) had a conversation with him; that in that conversation Martin told witness that he was going to die, and that he wanted his business arranged so that his boys would be protected; and he said, “There is only one that knows anything about what he is going to get and where it is, and that is Jess.” He testified further as follows:

“I remember Jess Martin building a house before Mr. Biartin died. Mr. Martin spoke to me about the house. He was talking about Jess being dissatisfied with, the old house, and said that he had it in his head to build a new one, and says, ‘X tried to get him to wait until he made a crop, and he could build a good house.’ He said he was not satisfied with the old house, and now he could do just anything he liked about the house.
“Jess never did pay us any rent until last year; last year is the first time Mr. Jess Martin paid us any rent. Mrs. Martin left last year soon after Mr. Martin died, and gave us an order on everybody on the place for rent, and of course she gave us Jess’ name. When Jess came in and Mr. Hale, our bookkeeper, told him of this, he kicked about it, and after I explained the matter to him that Mr. Martin owed us an account, and that Mrs. Martin wanted the rent to pay that account, and even if he did not owe any rent and it was liis own land it did not amount to much, and he says, ‘Under those conditions you can take the rent.’ The reason I know that Jess did not pay any rent before this was because Mr. Martin did his business with us.”

In explanation, however of the testimony of the witness as to payment of rents by ap-pellee, it may be well to state that the two brothers of appellee who lived on the premises testified that William Martin had told his son Jess, appellee, to keep the rent until he had paid Colbert and Hale what he (Jess) owed them; that is, that he pay Colbert and Hale first, and that, if anything was left, then pay him the rent.

Appellee did not testify to the alleged gift by his father to him, presumably because his testimony as to conversations and transactions with his deceased father were inadmissible, but he did testify on direct examination that he moved into the house on the 160 acres claimed by him in the fall of the year 1913; that at that time the house was in bad shape and leaked badly; that he lived in the old house a year or two, after which he tore it down and built it over; that in rebuilding it he used some of the old lumber, but that the new material and work of building was worth about $150 to $200; that he did not keep any memorandum of such expenditures or of the labor, but he judged it was about the sum named; that he built some fences, which cost him $15 to $18; that he also built a crib with logs he and others cut from the premises, which he valued at about $150 and that the land he cleared on the tract was worth about $50; that he had never been paid for making such improvements, and that he made same in good faith, relying upon the alleged parol gift alleged by him.

On cross-examination he testified, among other things, that he paid for' the lumber that went into the house remodeled on the 160-acre tract; that he knew Jim Lusk hauled one load of lumber to his house, but that he would not swear that all of it was used on his house; that he had no idea how much of it was used in remodeling the house, and would not attempt to make an estimate, but that he had a good idea of the cost of the portion of it that was used on the house, and thought it was $25 or $30, though he would not be positive about that; that his father paid for the lumber in the first instance, and that he paid his deceased father for his portion thereof; that he did not pay his father in cash or with a check, but that, as his father owed him somewhere about the value of his part of the lumber, they agreed to call it even. He testified that he built a barn on the 160 acres; that he paid about $10 for the lumber that was used in building the same; that the barn was built of logs cut from the land and covered with oak board split on the premises. Continuing, he testified as follows:

“I cannot say how long it took us to remodel the house, but it seems to me that it was about two or three or four days, but I would not be positive. I did not pay Frank any money, but I paid Bud some. My father may have helped fix a window frame, but that is all he did, and I did not pay him anything.
“Jim Lusk also helped; some on the house. I think the lumber cost $25 or $30, and I paid Bud, if I am not mistaken, $16; it was in the neighborhood of $16 that I paid him for work on the house. I paid him in cash in Mr. Jim Britton’s store. I never paid him all of it, because there was a little difference between us, and when we settled up I paid him the difference; but I would not be positive just how much it was — whether it was $8 or $10 or $15, but I will swear that it was as much as $8, but am not positive that I paid him more than that. I have not paid Jim Lusk all I owe him yet. I owe him some yet. I think his work on the house was $16 for about 16 days. He did not do any. of this work himself, but I hired one of his boys to plow for Mr. Griffin while Mr. Griffin helped me on the house; that is, he swapped work with Mr. Griffin. Jim’s work came to $15 or $16, and I have not paid him anything yet, for I have not had the money. Mr. Tittle was helping on the house, he cut the rafters one evening, but did not charge anything. No one else helped that drew any pay that I can remember now. The most of the lumber that went into the new house was the old lumber taken out of the old house, and about $25 or $30 worth of new material, and that included everything in the way of material outside of some work.”
“Mr. Griffin also worked on the bam, but I do not remember what I paid him. I paid Mr. Griffin at the rate of $1 per day, but I do not know how much time he put in, but am sure he put in as much as half a day. We were one day raising the bam, so that would be $1. T think he made some boards, but I do not remember what I paid him for that, and I do not know how long he was at it. He made some boards up at the blacksmith shop, and kept his own time, and I couldn’t say whether it was as much as 5 days or not, but I suppose it took him as much as 3 or 4 days or 5 or 6. He was making the boards by the hundred, and charged from 20 to 30 cents per hundred, and he cut I think between two or three thousand boards (2,000 or 3,000). Lum Jones also worked on that bam the day we raised it, and I am not positive whether he helped haul the logs or not, and I, think we gave him a day’s work, which would be $1. Bill Brown also worked on the bam one day, and am not positive whether Bill Brown and Lum Jones cut those logs and drew time for that or not. I think Mr. Griffin cut the logs, and I am pretty sure that I paid for it. I do not think Bud or Frank could have cut the logs themselves. I do not know just what was paid for that, and I am not willing to swear that it was.as much as $5 and I do not know how many days that-it would take to go into the bottom and cut the logs, but I should judge that it would take about 5 days, and paid $1 per day. No one else worked on the bam that I can remember.”

Continuing, he testified that he built some hog wire fence; that the wire used on said fence cost about $9 to $12; that he also put some chicken wire around his garden, but did not remember what it cost him, but thought it cost him about $18; that he thought his father helped him put the wire around the garden.

Testifying further he said:

“X cannot be positive about how much land I cleared off, but there was between 10 and 15 acres that I cleared up in one sp'ot last year. The work may have been done the year before, but last year was the first crop on it. I cleared up some of this sandy field. The sandy field is not west of the land I claim, but part of it is on the land that I now claim. It is true that my father gave Bud, Frank, and myself and Mr. Griffin and all of tie boys all they made on h part of this land for clearing it up. That I cleared in the bottom last year he was giving all that I could make on it for two years for clearing it; that is the 15 acres that I have been speaking about. I do not know how much I cleared up on the sandy hill. I could not swear that it was as much as 5 acres that I cleared or paid for the clearing, but it was 3 or 4 acres or something like that. The other land that I spoke of wasn’t in the boundaries of the place where I now live; that is, it is out of the boundaries of the 160 acres that X now claim; that is, I have cleared up 3 or 4 acres of land on the tract that I now claim, but I paid for some clearing down in the bottom that is on the 160 acres, but I do not know how much. I expect there was about 25 or 30 acres of that, and maybe 40 acres, that was within the boundaries of the 160 acres, and on the lower end next to the river, 35 or 40 acres, but a part of it may be on the outside of the 160 acres I now claim. I don’t know exactly where the line crosses. I have never stepped it, and do not know where the line would be, and I have never surveyed it. I mean that I do not know where the east boundary line of the 160 acres I now claim is located. I do not know even until this day where that line is. It has never been surveyed nor has it been pointed out by anybody. Por that reason I cannot say how much of that land that X had cleared is on the 160 acres I now claim.”
“I alleged in my petition that the barn was worth $150, and I have testified on direct examination that it cost that much, and according to the itemized account I have given on cross-examination, according to the figures given for material and labor, it cost me $37.10, leaving $112.90 unaccounted for. I might not have figured that as close as you did! and have forgotten now what that difference was for. The only explanation that I have to offer is that I did not figure it that close when I gave the estimate to my attorneys to be inserted in the petition.
• “I alleged in my petition that I paid for four spools of net wire of the value of $18, and I testified that the spools cost from $3 to $4, and that would make $16 at the most. I also alleged’ in the petition for the labor of putting up this hog fence was $15, but would not be positive about paying that much for labor. I did not pay Bud or Prank anything, but I had a man hired), and if I am not mistaken I had Willie Newsome, hired, but I do not remember whether I paid him $15 or not.”
“A part of the land that I farmed ever since I have been there has been on other parts of the farm than on the 160 acres I claim. Jim Busk cultivated a part of this 160 acres in 1915 and paid the rent to my father. Bud might have cultivated a part of the 160 acres and paid the rent to my father for 1915. In 1915 I cultivated 15 or 20 acres up in the sandy field that is on the 160 acres that I claim.”
“Yes; Jim Lusk farmed a portion of the 160 acres last year and paid rent to my father. I swapped; land with my father last year. I did not swap land with Bud last year, and I did not know that he had any of the 160 acres, although he might have had in a little of the sandy patch, and if he rented any of it he rented it from my father and not from me. I would not be positive who tended a portion of that 160 acres last year. None of them paid me any rent; they all paid to my father.”

Por the purpose of discussing and passing upon the sufficiency of the evidence to sustain the judgment of the trial court, we have in the foregoing tried to make a fair statement of the undisputed evidence, and of the proof offered by appellee for the purpose of establishing his title, by proof of the parol gift alleged by him and of matters incident thereto, and have disregarded much evidence offered by appellant strongly contradictory of appellee’s evidence upon the facts relative to the parol gift alleged by him and the value of the improvements placed on the land.

It is well settled in this state that it is necessary to the validity of a parol gift of land that the possession be delivered, and substantial and valuable improvements made, with the knowledge or consent of the donor, upon the faith of such gift; and that the mere taking of possession, if any in the case, and making of improvements of insignificant value, is not sufficient, especially where, as here, the value of the rents largely exceeds that of the improvements. Wooldridge v. Hancock, 70 Tex. 21, 6 S. W. 818; Eason v. Eason, 61 Tex. 225; Combest v. Wall, 102 S. W. 147; Ann Berta Lodge v. Leverton, 42 Tex. 18.

It is also well settled in this state that where one seeks to recover title to land upon an alleged parol gift, as against one who holds the legal record title, he must establish by full, clear, and satisfactory evidence a gift of the and, the terms and conditions of which must be shown to be clear and free from ambiguity and doubt, and not merely an expression of an intent to make the gift at some future time. Murphy v. Stell, 43 Tex. 123; Snover v. Jones, 172 S. W. 1122.

The statement and acts of William Martin, testified to by the witnesses Mrs. J. M. Martin, Lum Jones, Wiley Williams, Lum Colbert, and appellee, Jess Martin, relative to the alleged gift, cannot be said to be evidence of a gift free from ambiguity and doubt. The testimony of these witnesses is not such full, clear, and satisfactory evidence as is required to take a parol agreement for the transfer of title to land out of the statute of frauds, nor it is sufficient to warrant a finding that William Martin had given appellee the land claimed by him, or that he had unconditionally promised it to him in the future. But, on the contrary, the evidence as a whole shows that William Martin had and retained charge and control of said land, making rental contracts with tenants, cultivating a part thereof year after year; that he contracted during said years for the clearing of parts of said land, giving to the tenants so clearing the same use of the land so cleared by them, respectively, for one year for their labor; that he assessed the land for taxes, and paid all taxes due thereon up- to date of his death; and that he alone paid the interest due on the $8,000 debt against the entire 998¼⅛0.-6 tract.

The testimony of appellee, J. M. Martin, the only witness who testified as to the value of improvements which he alleges he made on the land, clearly shows that the value of such improvements was of insignificant amount, and much less than the value of the rents of the land.

“To constitute a valid gift inter vivos, there must be a gratuitous and absolute transfer of the property from the ctonor to the donee, taking effect immediately, and fully executed by a delivery of the property by the donor and an acceptance by the donee. Such gifts can have no reference to the future, but go into immediate and absolute effect. 14 Am. & Eng. Ency. Law (2d Ed.) p. 1015.”
“It has been said that, to establish a gift by parol, the proof must be clear and free from all ambiguity and doubt. Combest v. Wall, 102 S. W. 147.”
“In order to remove a parol contract for the sale of land from the operation of the statute of frauds, its terms and' conditions must be clear and free from all ambiguity and doubt, and it must be established by full, clear, and satisfactory evidence. Snover v. Jones, 172 S. W. 1122.”

In Ann Berta Lodge v. Leverton, 42 Tex. at page 26, it is said:

“It is well settled, when the purchaser has been fully compensated for his improvements, or has gained more by his possession than he has expended in improvements, they will not avail him as a ground for specific execution. Wack v. Sorber, 4 Wheat. 387; Eckert v. Eckert, 332; O’Reiley v. Thompson, 2 Conn. 271.”

Alleged parol gifts, asserted for the first time after the death of the donor, to be upheld ought to be above question or suspicion at all times; but more especially when they render inoperative, as they would in this case, the provisions of the will made by the alleged donor. The evidence to support them ought to he full and clear and free from uncertainty, for the temptation to seize upon statements made by the deceased alleged donor might be too often yielded to under the influence of interest or promptings of aver-ice, and produce most grievous wrongs. The facility with which such alleged gifts are sometimes proved is suggestive of great caution in weighing the evidence adduced 1 to sustain them. To doubt them ought to be to deny them.

“ ‘Around every other disposition of the property of the dead the legislative power has thrown safeguards against fraud; and perjury. Around this mode (donatio mortis causa) the requirement of actual delivery is the only substantial protection, and the courts should not weaken it by permitting the substitution of convenient and easily proved devices.’ Keepers v. Fidelity Title & Deposit Co., 56 N. J. Law, 303 [28 Atl. 585], 23 L. R. A. 184 [44 Am. St. Rep. 397].
“Mindful of the facility with which, after the alleged donor is dead, fraudulent-claims of ownership may be founded on pretended gifts of his property, asserted to have been made while he was living, it is but a salutary precaution which demands explicit and convincing evidence of every element needed to constitute a valid donation, whether it be a donation inter vivos or mortis causa. Even then fraudulent claims may prevail, but the rigid requirement of the clearest proof will at least diminish the number.” Whalen v. Milholland, 89 Md. 212, 43 Atl. 43, 44 L. R. A. at pages 212, 213.

We are of the opinion that the evidence adduced to prove the alleged gift of the 160 acres of land claimed by appellee is too inconclusive and vague to support the appel-lee’s claim.

For this and other reasons we have assigned, the judgment of the trial court in favor of appellee is reversed, and judgment is here rendered in favor of appellant for the entire 998¼ acres of land sued for by her.

Reversed and rendered.
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