Cummings v. Moore

RAINEY, Chief Justice. This suit was instituted by M. T. Tip-pin against Mrs. L. J. Cummings, the appellant, to recover a tract of land that he had theretofore deeded to her. After the institution of the ■suit, M. T. Tippin died, and the appellees, his children and heirs, made themselves parties and prosecuted the suit. Judgment was rendered in favor of the appellees, from which this appeal is prosecuted. • The- plaintiffs’ petition substantially alleged that there.was an agreement between him and Mrs. L. J. Cummings to intermarry; that in July, 1900, plaintiff stated to the defendant that he owned the land in •controversy, and that he wished to provide for a home on some of said land for himself and defendant to be used by them as such after their •contemplated marriage, but that he had not the means or credit whereby he could build such home. Defendant then suggested to plaintiff that ;she had a son living in Dallas who was receiving a good salary, and that. if plaintiff would convey said land to her, she would induce her son to raise the money to build a dwelling house as a home for plaintiff and •defendant upon some portion of said land. Thereupon, relying upon, •such undertaking so made by defendant, he conveyed the said land to her for the sole purpose of enabling defendant to so induce her said son. to secure the building of said dwelling house upon said land to be used as a home for plaintiff and defendant after their contemplated marriage. There was no consideration paid by defendant or received by plaintiff for the conveyances or either of them, and that the legal title "to said lands was, by the conveyances, vested in defendant in trust for the purposes aforesaid. That defendant has failed to induce her son to have said dwelling house built on any of said lands, and that her son has failed and refused to do so. That after defendant’s son had refused to secure said house to be built, plaintiff requested defendant to reconvey said land to him, which she refused to do. The foregoing allegations were substantially proved on the trial, and we find from the facts that the deed was made in contemplation of marriage and to secure the erection of the house thereon to be occupied as a home by the said Tippin and the said L. J. Cummings after their marriage. The contract of marriage was never consummated, and we are of the opinion, under the evidence, that had M. T. Tippin lived he could have recovered the land. The appellees herein being his legal heirs, inherited his right and are entitled to recover. The appellant complains of the ruling of the court in admitting the -depositions of M. T. Tippin, taken during his lifetime, on the ground "that appellees were not parties to the suit when said depositions were [557] taken. The court did not err in overruling the objection. The appellees occupied the same relation to the suit that said Tippin did before his death. .There are various assignments attacking the judgment on the ground that it is not supported by the evidence. Hone of these are well taken, and the judgment,is affirmed. Affirmed.