Opinion
No. 3721.
July 14, 1938. Rehearing Denied September 12, 1938.
Appeal from District Court, Dallas County; Dick Dixon, Judge.
Suit by Vira Miller and husband against Mrs. Martha A. Guinn, to recover land. From a judgment for defendant, plaintiffs appeal.
Affirmed.
Vira Miller, joined by her husband, H. C. Miller, brought this suit against Mrs. Martha A. Guinn, surviving wife of James F. Guinn, to recover Lot 11, in Block 18, El Molino Addition to the City of Dallas. Vira Miller is the daughter of Martha A. Guinn and her deceased husband. The latter died July 8, 1931, and the suit was filed September 15, 1931. The plaintiffs claim under an alleged parol gift in the year 1920 by James F. Guinn with the concurrence of Martha A. Guinn. According to the evidence of the plaintiffs the Guinns orally agreed to give the lot to Vira Miller if they would build and pay for a house upon the lot and move upon it. The evidence further shows the house was built and paid for and the plaintiffs moved into the same about December, 1920, and occupied the same as a home until September, 1925, when they disposed of the house and removed from the lot and have since lived elsewhere. The jury found (1) "that in the year 1920 James F. Guinn made a verbal gift of the Lot 11 in controversy to Vira Miller;" (2) "that it was understood and agreed by and between James F. Guinn and Vira Miller that such gift of Lot 11, if you have found in answer to special Issue No. 1 that there was such a gift, was conditioned as follows: That said Lot 11 was not to become the property of said Vira Miller until she, the said Vira Miller, and her husband, Henry C. Miller, had constructed and paid for a house thereon." Issues three and four made the same inquiries concerning Martha A. Guinn and were answered the same as one and two. Judgment was rendered for defendant.
E. P. Bryan (on rehearing), and Lee R Stroud, both of Dallas, for appellants.
Clint Eades, Allen Eades, and Eric Eades, Jr., all of Dallas, for appellee.
It is well settled that in order to remove a parol gift of land from the operation of the statute of frauds, a present gift must be shown together with possession under the gift taken and held by the donee with the consent of the donor and permanent and valuable improvements made on the land by the donee in reliance upon the gift with the consent or knowledge of the donor. Davis v. Douglas, Tex.Com.App., 15 S.W.2d 232; West Texas, etc., Co. v. Adams, Tex. Civ. App. 54 S.W.2d 547, affirmed Shirey v. West Texas Const. Co., 126 Tex. 173, 86 S.W.2d 1115; Combest v. Wall, Tex. Civ. App. 102 S.W. 147; Hightower v. Pruitt, Tex. Civ. App. 77 S.W.2d 754; Martin v. Martin, Tex. Civ. App. 207 S.W. 188.
In Combest v. Wall, supra, it was said [page 150]:
"To constitute a valid gift inter vivos, there must be a gratuitous and absolute transfer of the property from the donor to the donee, taking effect immediately, and fully executed by a delivery of the property by the donor and an acceptance thereof by the donee. Such gifts can have no reference to the future, but go into immediate and absolute effect. 14 Am. Eng. Enc. Law (2d Ed.) p. 1015.
"* * * It was necessary to constitute a valid gift that it should go into immediate effect, and not depend on the future action of the donor."
In West Texas, etc., Co. v. Adams, supra, it was said [page 549]:
"To constitute a valid `gift of land inter vivos,' there must be a gratuitous and absolute transfer of the property from the donor to the donee, taking effect immediately, as distinguished from a mere expression of intention to make the gift at some future time, and fully executed by a delivery of the property by the donor and an acceptance of the delivery by the donee."
The findings of fact above stated do not show a parol gift of the land operative in præsenti, but, in effect, was a promise to give the land after Vira Miller and her husband had constructed and paid for a house on the same. In view of these findings and the evidence supporting the same the court properly rendered judgment in favor of the defendant.
Affirmed.