Montgomery v. Carlton , 56 Tex. 361 ( 1882 )

Bonner, Associate Justice.—

The two principal questions in this case relate, first, to the validity of the alleged parol gift of the land in controversy from Mrs. Frances Montgomery to John G. Montgomery, the father of appellants, and under which they claim; second, to the validity of the sale of the land under the proceedings for partition had in the county court under which appellee Carlton claims.

I. As to the validity of the alleged parol gift.

The rule adopted by this court is that a parol gift of land will be sustained and enforced, when clearly proven, and when possession has been taken and valuable improvements made on the faith of it. Willis v. Mathews, 46 Tex., 482; Murphy v. Steel, 42 Tex., 135; Browne on the Statute of Frauds, §§ 461, 491a.

If it be conceded that the possession of John G. Montgomery given him by Mrs. Frances Montgomery jointly with herself was such possession as intended by these decisions, there was still wanting the other essential ingredient of valuable improvements, required to make the parol gift binding. The answer setting up this gift was defective in not alleging such improvements, and the question would have been more appropriately raised by demurrer to the answer than by objection to the testimony. But in view of this defect in the pleadings, and that there was no offer to introduce evidence of such improvements, we are of opinion that the court did not err in the exclusion of the testimony as shown by the bill of exceptions.

II. As- to the validity of the sale under the proceedings for partition.

The county court had general jurisdiction over the subject matter of the partition of the estate of Mrs. Frances Montgomery; and the personal service required by the statute on the minor heirs of John G. Montgomery, and who under the will of Mrs. Montgomery were distributees of her estate, gave the court jurisdiction over their persons. Under the statute, the court after having thus acquired jurisdiction should have appointed a guardian ad litem to represent the minors, they not having a general guardian. Laws 15th Leg. (1876), 120, secs. 102-3.

The failure to do this, however, was but an irregularity, which, though it may have rendered the judgment of the county court voidable on a direct proceeding, did not render it absolutely void, so that it could be impeached on a mere collateral attack like the present. Freeman on Judgments, § 151, citing Simmons v. McKay, 5 Bush (Ky.), 25.

III. The court charged the jury that the plaintiff had made out his paper title to the land described in the petition, and they should return a verdict for the plaintiff for the land so described.

This charge is assigned as error because upon the weight of evidence.

It is the proper practice for the court to charge the legal effect of the paper title offered in evidence, and when, as in this case, the plaintiff proved such prima facie legal title, and the "evidence of the defendant failed to prove title in themselves, then it is not a charge upon the weight of evidence for the court to instruct the jury to return a verdict for the plaintiff.

[Opinion delivered March 7, 1882.]

There being no error in the judgment below, the same is affirmed.

Affirmed.