Johnson v. Hampton , 266 S.W. 561 ( 1924 )

Appellant insists that the judgment was unauthorized because, she says, it was not shown that the relation of landlord and tenant existed between her and appellee. The contention is on the view that, unless such relation existed, appellee was not entitled to maintain an action for forcible detainer And that is the meaning of the statute as we understand it. Article 3940, Vernon's Statutes; Francis v. Holmes,54 Tex. Civ. App. 608, 118 S.W. 881 Gulledge v. White, 73 Tex. 498,11 S.W. 527. Looking to the testimony referred to and that set out in the statement above (and there was none other relevant to the question), it is plain, we think, that it was not shown that appellant was appellee's tenant. The only testimony controverting that of appellant that she never agreed to become appellee's tenant, but, on the contrary, claimed the land as her homestead (Anderson v. McGee, 61 Tex. Civ. App. 274,130 S.W. 1040), was that of J. R. Hampton that appellant agreed to get off of the land when he, as administrator, sold it. We do not think such an agreement on her part, if she made it created the relation of landlord and tenant between her and J. R. Hampton as administrator; and, if it did not, of course it did not as between her and appellee. Assuming that the administrator, if he had a right to possession of the land, could pass the right to appellee without a consideration to the estates he represented, which is doubtful (article 3472, Vernon's Statutes), certainly if the land was appellant's homestead, she was not bound by the promise to appellee to abandon it, in the absence, as was the case, of a consideration for such promise. It clearly appears from the record, we think, that the issue between the parties, as in the Francis-Holmes Case, cited above, was "necessarily one of title," and could not be determined in an action for forcible detainer. Therefore the judgment will be reversed and the cause will be remanded to the district court, with instructions to dismiss it.