
    COOK et al. v. ERWIN et al.
    (Court of Civil Appeals of Texas.
    Jan. 14, 1911.)
    1. Specific Performance (§ 47) — Parol Gift — Improvements,
    When a purchaser of land under parol contract has been fully compensated for his improvements or has gained more by his possession than he has expended in improvements, such improvements will not avail him as a ground for specific performance.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 132; Dee. Dig. 8 47.]
    2. Specific Performance (§47) — Parol Contracts — Improvements—Value.
    The rule that a donee or purchaser under a parol sale is entitled to specific performance, if he, relying on such gift or sale, takes possession of the land and makes valuable improvements thereon, is based upon equitable principles of estoppel, and the relative value of the improvements and the land upon which they are made must be considered in determining the question of the right to specific performance.
    [Ed. Note. — For other cases, see 'Specific Performance, Cent. Dig. § 132; Dec. Dig. § 47.]
    Appeal from District Court, Tarrant County; W. T. Simmons, Judge.
    . Action to quiet title by S. W. Cook and another against M. J. Erwin and others. From a judgment for defendants, plaintiffs appeal.
    Reversed and remanded.
    A. J. Clendenen, for appellants. C. M. Templeton, for appellees.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key Nd. Series & Rep’r Indexes
    
   DUNKLIN, J.

This appeal is from a judgment denying appellants a recovery of an undivided one-fifth interest in 200 acres of land. Plaintiffs and defendants claimed under James Holland as a common source of title. Plaintiffs introduced in evidence a deed to the land in controversy from James Holland to Martha J. Holland and the children of herself and her deceased husband, Mordecai Holland, the son of James Holland. There were four of those children, namely, Mrs. Mary Cook, wife of S. W. Cook, plaintiffs, and Mrs. Lou Boydston, Mrs. Ada Heat-ley, and Ira Holland, all of whom were made codefendants with Mrs. Martha J. Erwin, formerly Mrs. Martha J." Holland, she having remarried after the death of her former husband, Mordecai Holland. The deed referred to above was dated May 8, 1874, reciting a consideration o'f $1,500 paid to the grantor by M. F. Holland. The undivided one-fifth interest in the land which purports to have been conveyed to Mrs. Cook by this deed waá the interest which she sought to recover.

Mrs. Erwin relied upon an alleged parol gift of one half of the land by James Holland to her former husband, Mordecai Holland, during her marriage with the latter, a parol gift of the other half of the land by James Holland to his daughter, Mrs. L. H. Cooper, the purchase of that half from Mrs. Cooper by Mordecai Holland, and a claim of homestead on the land ever since the death of Mordecai Holland in 1S73. The evidence seems to show beyond controversy that James Holland agreed, in parol, to give to his son Mordecai Holland, and to his daughter, Mrs. L. H. Cooper, each one-half of the land; that in 1806, upon the faith of these agreements, both donees moved upon the land with their families. After occupying and cultivating one-half of the land for two years, Mrs. L. H. Cooper and her husband sold the same to Mordecai Holland for an agreed consideration of $1,500, of which $300 was paid by Mordecai Holland and the balance by defendant, Mrs. M. J. Erwin, after his death, but this seems to have been a parol sale. After Mordecai Holland moved on that portion of the land which his father agreed to give him, he continued to use and cultivate it up to the date of his death. He also used and cultivated the portion which his father had agreed to give his sister, Mrs. Cooper, from and after the date of his purchase of her interest. The evidence seems to show, further, that the use and occupancy of the land by Mordecai Holland and his sister was without objection on the part of their father, and that Mordecai Holland made some improvements on the land. Defendant Mrs. M. J. Erwin testified that the deed in favor of herself and her children executed by James Holland after the death of her husband was never delivered to her, that she never paid any consideration therefor, knew nothing of it until long after its execution, and that she never claimed any interest thereunder. She further testified without controversy that taxes had been paid upon the land by her husband and herself ever since the .gift. However, she failed to prove the value of any of the improvements made on the land by her husband, and also failed to prove the value of the land at the time the improvements were placed thereon, or at the date of the alleged parol gift of it by James Holland. It seems that she further failed to show any improvements by Mrs. L. H. Cooper under the parol gift to her from her father. While there was no direct testimony to the rental value of the land during the occupancy of Mordecai Holland, there was testimony from which the conclusion might be drawn that the rental of the land was of some substantial value. In the case of Ann Berta Lodge v. Leverton, 42 Tex. 18, the court declined to enforce a parol agreement for the sale of land. In that case the grantee had made improvements after repudiation of the sale by the grantor, and the evidence showed that the improvements were paid for out of the rents of the property. In that case our Supreme Court 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 performance.” See, also, Eason v. Eason, 61 Tex. 225; Wooldridge v. Hancock, 70 Tex. 18, 6 S. W. 818. The rule announced in that decision seems to have been modified by later decisions. In Wells v. Davis, 77 Tex. 637, 14 S. W. 237, the proof showed that the value of the use of the property during the time it was occupied by the donee thereof under a parol gift exceeded the value of the improvements placed thereon by the donee. In deciding that case our Supreme Court said: “To hold in such eases that the purchaser under a parol sale or gift must be held to account for the value of the use and occupation of the premises is to treat him as a renter or trespasser, instead of as a purchaser, and is inconsistent with the theory upon which specific performance has been decreed in such eases. * * * When the owner of land has given it to another, or when he has sold it and the purchase money has been paid, and the vendee or donee has been placed in possession, and has in consequence thereof placed upon the land improvements of a character that a court of equity will estimate as being within themselves of sufficient importance and value to entitle the party to a decree for the specific performance of the contract, the use of the premises from the date of such possession must be treated as going with the equitable right to the property itself. In this case the amount expended in the improvement of the land compared with the value of the land itself cannot be treated as unimportant.” While in many of the later decisions it is said in general terms that a donee or purchaser under a parol sale is entitled to a specific performance if he, relying upon such gift or sale, takes possession of the land and makes permanent and valuablé improvements thereon, we do not believe that any of those decisions can be said to have overruled or modified the announcement quoted above from the decision in Wells v. Davis. See Wootters v. Hale, 83 Tex. 563, 19 S. W. 134; Baker v. De Freese, 2 Tex. Civ. App. 524, 21 S. W. 963; La Master v. Dickson, 17 Tex. Civ. App. 473, 43 S. W. 911.

The rule is based upon equitable principles of estoppel, and it seems that in sonie cases, at least, the relative values of the improvements and the land upon which they are made must be considered. See Hutcheson v„ Chandler, 47 Tex. Civ. App. 124, 104 S. W. 435; Baldwin v. Riley, 49 Tex. Civ. App. 557,108 S. W. 1192, and decisions there cited.

AS there was no evidence to show the value of the improvements nor of the land in controversy, a new trial should have been granted, and for the error in refusing the same the judgment is reversed and the cause remanded.  