Hernandez v. Alta Verde Industries, Inc.

666 S.W.2d 499, 1983 Tex. App. LEXIS 4929
CourtCourt of Appeals of Texas
DecidedSeptember 7, 1983
DocketNo. 16930
StatusPublished
Cited by8 cases

This text of 666 S.W.2d 499 (Hernandez v. Alta Verde Industries, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hernandez v. Alta Verde Industries, Inc., 666 S.W.2d 499, 1983 Tex. App. LEXIS 4929 (Tex. Ct. App. 1983).

Opinion

OPINION

REEVES, Justice.

This is an appeal from a judgment in a trespass to title suit. At the close of the evidentiary portion of the trial, the trial court instructed the jury to return a verdict in favor of appellee. Appellants assert title by way of an oral gift and the statute of limitations; alternatively, damages for constructing improvements on the property.

Since judgment was based on the trial court’s instructed verdict, we must ascertain if there is any evidence of probative force to raise a fact issue on the material issues. In reaching this determination it is our responsibility to consider all of the evidence in its most favorable light in support of the appellant’s position and disregard all contrary evidence and inferences. Henderson v. Travelers Insurance Co., 544 S.W.2d 649 (Tex.1976). Using that as our guide, we narrate the facts most helpful to appellant’s position.

Appellant, Guadalupe Hernandez is the widow of Nazario Hernandez. Appellants, Aurora Hernandez, Manadora Hernandez, Manuela Hernandez Rodriguez, Helena Angelina Hernandez Ortiz, and Guadalupe Hernandez Farela, are descendants of Na-zario . Hernandez. In 1925, Nazario Hernandez and wife obtained employment on a ranch in Quemado, Maverick County, Texas, owned by the Lehmann family. The Hernandez’s, and other employees of the Lehmanns, were permitted to live on a portion of the land situated on the Lehmann Ranch. During the depression, all of the employees except the Hernandez’s left the ranch to find employment elsewhere. By the year 1940, the Hernandez family was the only family working for the Lehmann’s and, they alone occupied the land which had been reserved for the Lehmann employees, which land consisted of approximately three acres.

The ranch was managed for the Leh-mann family by Anton Lehmann. Anton asserted total control over the ranch’s operation and, generally speaking, ran the ranch as if he owned it. Actually he only owned approximately a one-seventh (Vr) undivided interest. Sometime around the year 1947 Nazario told Anton that he and his family were going to leave the ranch as he was not being paid a salary and needed to go elsewhere to make a living. This conversation took place on the front porch of Anton’s home. Anton stated that he did not want Nazario. and his family to leave, [502]*502and if they would stay, he would give them the land upon which they were living. Anthony Lehmann, Anton’s nephew, also an owner of an undivided interest of the Leh-mann Ranch, was present at the time this conversation took place and testified to the event at the trial. Anthony also testified that sometime during the 1950’s Anton became ill and it became necessary, from time-to-time, to drive Anton from Del Rio to San Antonio to visit a physician. During one of the returning trips, when Anton was feeling poorly, he told his nephew that if he died, the nephew must make sure that Na-zario kept his place. Nazario’s son, Arma-dor Hernandez, in response to a question asked by appellee’s attorney, stated that in 1950 or 1951, Mr. Anton Lehmann brought a man who represented a finance company from Crystal City on the property which is the subject of this lawsuit, showed the finance company man their house, and said that he was not selling or mortgaging that portion of the ranch in that it belonged to Nazario and that Anton Lehmann did not want him “to bother him”. Nazario, with his wife and children, lived there from 1924 or 1925 until his death which occurred in 1971, and the Hernandez family continued to live on the premises through the date of the trial. The appellants cultivated a portion of the three acre tract, keeping the produce such as onions, tomatoes, and lettuce for their own use. They planted fruit trees and raised, for their own use, chickens and hogs. They dug a water well and kept the fences and the house which had been furnished them in repair. In general, they exercised control over the three acre tract. At no time did anyone interfere with their occupancy or attempt to evict them.

On April 15, 1969, Anton Lehmann, et al, executed a deed to the Winter Garden Production Credit Company, which deed contained a reservation which states, in part,

Grantors also reserve unto themselves ... a tenant house now occupied by grantors’ employee that is also near highway 277, which now exists on the ground, but upon the death of both Anton Lehmann and Katherine Lehmann, this reservation shall immediately terminate, and cease and shall become and be of no further force and effect.

Appellants testified that they were not aware of the deed nor the reservation. Anton Lehmann died in 1970. In February 1974, Mr. Leon Miller purchased the property from Winter Garden Production Credit Association, and he, in turn, conveyed it to appellee. Mr. Miller testified that he was aware that the Hernandez’s were living on the property prior to his purchase from Winter Garden, but that sometime during the spring of 1974 he became aware that appellants were starting construction on a new house. He stated that upon his investigation of the property he found “a batter board up and a little concrete around a footing.” It appeared to him to be the start of a foundation for a house. He testified that he warned the Hernandez’s not to construct a new house. The Hernandez’s testified that, due to financial restraints, they had built the house piecemeal, and that actually they had started on the foundation prior to 1974. Subsequent to this conversation, the Hernandez’s completed a home consisting of five bedrooms, a kitchen and a bath which cost them between $20,000 to $30,000. The Hernandez’s paid no taxes and never received a deed from the Lehmann’s.

Our Supreme Court in Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921), reaffirmed the rule that to remove a parol sale of land from the operation of the statute of frauds, TEX.REV.CIV.STAT. ANN. art. 1288 (Vernon 1980), it is necessary that each of the following elements be established:

(1) Payment of the consideration, whether it be in money or services;
(2) Possession by the vendee; and
(3) The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced.

[503]*503Each of these three elements is indispensable, and they must all exist. Id., 229 S.W. at 1116. A parol gift will also be upheld when the gift has been clearly established provided the donee takes actual possession of the land and, relying upon the gift, makes valuable improvements with the knowledge of the donor. Patterson v. Hall, 439 S.W.2d 140 (Tex.Civ.App. — Austin 1969, writ ref’d n.r.e.).

The evidence is uncontroverted that the Hernandez’s were in possession of the land in question. Appellee, however, complains of the evidence introduced to show the gift, contending that the testimony of Arthur Lehmann relating Anton Leh-mann’s statement to give the property to Nazario Hernandez was the “rankest kind of hearsay”. The testimony of a third person (Arthur Lehmann) relating a statement made by a donor (Anton Lehmann) is admissible as proof of a decedent’s intent to make a gift of property. Wooldridge v. Hancock, 70 Tex. 18, 6 S.W. 818 (1888); Peterson v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

in Re the Estate of William H. McNutt
Court of Appeals of Texas, 2015
in Re Estate of William H. McNutt
405 S.W.3d 194 (Court of Appeals of Texas, 2013)
McCuen v. Huey
255 S.W.3d 716 (Court of Appeals of Texas, 2008)
Joseph W. McCuen v. George Philips Huey, Jr.
Court of Appeals of Texas, 2008
Timothy Hargrove v. State
Court of Appeals of Texas, 2003
Kelly Sue Livingston v. Todd D. Livingston
Court of Appeals of Texas, 2000

Cite This Page — Counsel Stack

Bluebook (online)
666 S.W.2d 499, 1983 Tex. App. LEXIS 4929, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-alta-verde-industries-inc-texapp-1983.