Hammock v. Kemp

Atkinson, J. This was an action of complaint for land and mesne profits, instituted by an administrator. The defendant denied the alleged value of the mesne profits, and set up title to the land under a parol gift and sale of the land by the plaintiff’s intestate. Held: 1. The evidence was insufficient to establish a gift or sale of the land by the intestate, as alleged by the defendant; and there was no error in directing a verdict for the plaintiff for recovery of the land. If certain evidence which was excluded by the court had been admitted, it would have been insufficient to have changed the result. 2. Opinion evidence as to the value of mesne profits does not authorize direction of a verdict for mesne profits. 3. While the judgment will be reversed, it is directed that on another trial the issue be limited to mesne profits. Judgment reversed, with direction. All the Justices concur. Complaint for land. Before John B. L. Smith, judge pro hae vice. Houston superior court. May 15, 1916. A. 0. Riley, J. B. Jaclcson, and L. B. 'Moore, for. plaintiff in .error. O. L. Shepard, Hardeman, Jones, Parh & Johnston, and Harry S. Strozier, contra.