78 S.W. 535
BONNER et al. 
v. 
BONNER.
Court of Civil Appeals of Texas.
January 23, 1904.
        Appeal from District Court, Freestone County; L. B. Cobb, Judge.
        Action by O. A. Bonner against W. P. Bonner and others. From a judgment for plaintiff, defendants 
W. P. Bonner and another appeal. Affirmed.
        W. B. Moses, W. R. Boyd, J. G. Anderson and Callicutt & Call, for appellants. T. H. Bonner, C. L. 
Watson, and Anderson & Anderson, for appellee.
        TALBOT, J.
        This is an action, in the nature of trespass to try title, instituted by O. A. Bonner, appellee, against 
Mrs. Martha Bonner, W. P. Bonner, Mary E. Richards and her husband, W. E. Richards, J. A. Bonner, Annie 
W. Anderson and her husband, A. D. Anderson, and Sallie Belle Robinson and her husband, W. B. 
Robinson, in the district court of Freestone county on the 20th day of January, 1902, to recover 
possession of and quiet his title to about 1,000 acres of land, a part of the James James survey.
        Appellee, O. A. Bonner, alleged in substance that his father, Dr. John Bonner, gave him by parol gift 
and partition, as his part of his estate, the said land in controversy, and
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that at the death of his father he took possession of the same, and has been in actual, peaceable, and 
adverse possession of said land under said gift and partition since his father's death, a period of more 
than 20 years, and that he made valuable improvements on said land prior to the institution of this suit. 
That on or about the 1st day of January, 1900, Dr. James I. Bonner, deceased, defendants' grantor, 
entered upon said land and ejected him therefrom, and defendants continue to withhold possession from 
him. He further alleges that the said Dr. John Bonner, deceased, prior to his death, by parol gift divided 
out his lands and other property to his children. That Dr. James I. Bonner, deceased, received by parol gift 
and partition at the same time his portion of said estate, of equal value with the other children. That the 
land so given to the said James I. Bonner in said partition is now claimed by the appellants as heirs of the 
said James I. Bonner, deceased, under and by virtue of said parol gift and partition. That all of the heirs of 
the said Dr. John Bonner, deceased, ratified said partition by accepting same and taking possession of said 
lands, and are now occupying and enjoying the peaceable and uninterrupted possession of the same, and 
have been since the death of said John Bonner, deceased, a period of more than 20 years. That all the 
heirs of the said John Bonner, deceased, accepted said gift and partition, and have since recognized and 
admitted that title passed in partition to each to the land and property thus given by their father to each 
of them and to the exclusion of the other. Appellee further alleges in substance that on or about the 1st 
day of November, 1884, Dr. James I. Bonner agreed with him that if he would give him (Dr. James I. 
Bonner) the use of the pasturage of a portion of his above-described land, to wit, about 400 acres, he, the 
said James I. Bonner, would fence it in and keep up the fence for and in consideration of the use of the 
same as a pasture for his stock, and would annually pay the state and county taxes due, not only on the 
land he thus inclosed for pasturage, but the state and county taxes on appellee's entire tract of land. That 
said contract was faithfully complied with on the part of the said James I. Bonner. All of the defendants, 
except appellants W. P. Bonner and Mrs. Martha Bonner, disclaimed as to all the land sued for. Appellant 
Mrs. Martha Bonner disclaimed as to all the land sued for, except about 300 acres described in her 
amended original answer filed February 26, 1903. Appellant W. P. Bonner disclaimed as to the land 
described in Martha Bonner's pleadings, and to about 200 acres known as the "Anglin Field," described in 
his answer filed February 26, 1903. Besides said disclaimers, appellants Mrs. Martha Bonner and W. P. 
Bonner answered by general and special exceptions, general denials, pleas of not guilty, and the said W. 
P. Bonner pleaded the statute of limitation of 10 years. The case came on for trial February 27, 1903, 
appellants' exceptions were overruled, a jury trial had, and verdict was rendered for appellee for all the 
land sued for, and against appellant W. P. Bonner for $15 for timber converted, and judgment entered 
accordingly. Appellants excepted to the action of the court in overruling their demurrers, filed a motion for 
new trial, which being overruled, they appeal to this court and ask a reversal of said judgment.
        The evidence shows that Dr. John Bonner, of Freestone county, Tex., left surviving him at the date 
of his death, in 1878, the following children: Dr. James I. Bonner, John L. Bonner, Andrew Bonner, O. A. 
Bonner, Mrs. W. W. McCrery, and I. H. Bonner. Dr. James I. Bonner is now dead, and was the husband of 
appellant Mrs. Martha Bonner, and father of appellant W. P. Bonner. Dr. John Bonner owned and 
possessed a large landed estate, and, before his death, by parol gift gave each of his said children, at 
different dates, specific portions thereof. Each of said children accepted the gift, and entered into 
possession of the parcels of said land allotted to them respectively, more than 20 years before the 
institution of this suit, and have held possession thereof in severalty, using and enjoying the same as their 
own property, since the date of their respective entries. It does not appear that the respective tracts so 
given and received were not of equal value, or that there was any partiality or unfairness in the 
distribution made. Dr. John Bonner executed and delivered to his children John L. Bonner, I. H. Bonner, 
and Mrs. McCrery deeds of conveyance for the lands given to them. These deeds, however, or at least one 
of them, were given at their request, and long after they had been in possession of said lands. Andrew 
Bonner and appellee did not receive deeds from their father for their respective tracts, but the record does 
not show that any request was ever made therefor. A deed from Dr. John Bonner to James I. Bonner, 
dated January 9, 1871, for a part of the Bankhead and Claypool surveys, was introduced in evidence, but 
said deed was neither acknowledged nor recorded. The land in controversy is a part of that portion given 
to appellee, O. A. Bonner, and is a part of the James James survey. In 1884 or 1885, Dr. James I. Bonner, 
through whom appellants claim, leased that part of appellee's land in controversy for an indefinite length 
of time, by a verbal agreement, to be used by him as a pasture for his stock. He agreed, for the use of 
said land, to fence it and pay the annual taxes thereon, and on appellee's entire tract of land, during the 
time he so held and used the pasture. By virtue of this agreement Dr. James I. Bonner entered upon said 
land and held it under the terms thereof, keeping up the fences and paying appellee's taxes for the use
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of the same. If, prior to a short time before his death and the institution of this suit, he held the same 
adversely to appellee, such holding was unknown to appellee, and not of such character as to affect him 
with notice or knowledge thereof. The record fails to show that any improvements were made on the land 
by appellee. Dr. James I. Bonner conveyed the land in controversy to his wife, Martha Bonner, on the 12th 
day of February, 1895, but the deed was not filed for record until July, 1897; and he and his wife deeded 
to appellant, W. P. Bonner, on the 27th day of November, 1900, the land claimed by him in this suit.
        Appellants' first and second assignments of error are predicated upon the action of the court in 
overruling their special exceptions to appellee's petition. The grounds of complaint are: (1) That said 
petition attempts to assert a parol gift of land, accompanied by possession and valuable improvements 
made, from Dr. John Bonner, when said petition shows on its face that possession of said land was not 
taken by appellee until after the death of said Dr. John Bonner, and that no improvements were made by 
appellee on said land during the lifetime of said Dr. John Bonner; and that said petition does not show that 
improvements of any value were ever placed upon said land by appellee. (2) That a parol agreement is 
therein alleged between Dr. James I. Bonner and appellee, wherein Dr. James I. Bonner leased the land in 
controversy; and said petition shows that by the terms of said lease it was not and could not have been 
completed within the period of one year, and was in violation of the statute of frauds.
        The question presented under these assignments for decision is the same raised, though in different 
form, by appellants' fourth, fifth, sixth, eighth, and ninth assignments of error. The contention in effect is 
that the petition complained of bases appellee's right to recover solely upon the ground that Dr. John 
Bonner by parol gift gave the land in controversy to him, and that such a gift cannot be sustained and 
enforced unless it is alleged and proved; that appellee took possession of the land in Dr. Bonner's lifetime, 
and upon the faith of such gift made valuable improvements thereon; and this seems to be the theory 
upon which the case was submitted to the jury. If it be true that appellee's petition rests his right to 
recover alone upon the fact of a parol gift from his father, then the proposition of law asserted as 
applicable thereto is correct, and appellants' exceptions should have been sustained. It is well settled law 
in this state that the taking possession of and making valuable improvements on the faith of the gift are 
essential ingredients to take a parol gift of land out of the operation of the statute of frauds and make the 
same binding. Murphy v. Stell, 43 Tex. 123; Willis v. Matthews, 46 Tex. 478; Montgomery v. Carlton, 56 
Tex. 361; Baker's Ex'rs v. De Freese, 2 Tex. Civ. App. 524, 21 S. W. 963.
        We do not concur, however, in the proposition that appellee's right to recover the land is predicated 
alone upon a parol gift of the same from his father, without possession having been taken and 
improvements made. The petition, it is true, alleges that such gift was made; but it also alleges, in 
addition to the parol gift to appellee, that a similar gift was made to each of Dr. John Bonner's children, 
and that each accepted the gift, and went into possession of the land given him in partition of their 
father's estate, and has been enjoying the same for more than 20 years. These allegations are sustained 
and established by the undisputed evidence in the case, and if the property so distributed among his 
children did not constitute Dr. John Bonner's entire estate, and was not the only partition thereof ever 
made, it is not shown by the record before us. On the contrary, that such property did comprise his entire 
estate, and said gifts constitute the only partition thereof ever made, is the fair, if not irresistible, 
conclusion deducible from all the facts and circumstances in evidence before us. Dr. John Bonner having 
given and distributed his lands to and among his children in his lifetime, and each one having gone into 
possession of the part allotted to him and acquiesced in such partition, and held the same in severalty for 
more than 20 years, no fraud or inequality in the partition being alleged or shown, we are of the opinion 
the same is valid and conferred title. The above facts, except as to the possession of appellee of the land 
allotted to him, are not disputed, or, if so, were so conclusively established by the evidence that ordinary 
minds could not reasonably differ about them. The issue of appellee's possession of the land was 
submitted to the jury, and their finding was favorable to appellee. The trial court properly overruled 
appellants' objections to that part of appellee's petition setting up that Dr. James I. Bonner had leased 
from him the property in controversy by a parol lease which could not be performed in one year, and to 
the evidence offered in support thereof. The appellant W. P. Bonner had interposed the statute of 
limitation of 10 years in support of his claim to the land sued for, and the character of Dr. James I. 
Bonner's possession of the same, under whom appellants claim, thereby became a material inquiry. The 
parol lease pleaded, and the evidence offered in support thereof, were pertinent to that issue. If Dr. James 
I. Bonner had held possession of the land under and by virtue of said lease, and not adversely to appellee, 
then said plea of limitation would avail appellant nothing. The trial court correctly submitted the issue to 
the jury, and their verdict embraces a finding upon the question in favor of appellee.
        There was no error in excluding the tax deed from James Robinson, tax collector of
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Freestone county, to James I. Bonner, dated May 1, 1878, purporting to convey to said Bonner 1,971 
acres of land, a part of the J. James survey, in said county, offered by appellants to show or tending to 
show that they and appellee did not claim title to the land in controversy under a common source. It is 
true, it has been held in this state that a "void tax deed, purporting to evidence the sale of land as the 
property of an owner named, may be used to show the claim of title by a defendant when sued by some 
one claiming from the same source." Garner v. Lasker, 71 Tex. 433, 9 S. W. 332; Burns v. Goff, 79 Tex. 
236, 14 S. W. 1009. But it will be observed that in such cases the deeds admitted purported to evidence 
the sale of land as the property of an owner named. If the deed offered purports to evidence the sale of 
land of an unknown owner, it cannot be known therefrom whether the parties claim from the same or 
different source. The deed offered and excluded in the present case, as shown by the bill of exception, 
recited that the land was sold as the property of an "unknown owner." Its recitals were not inconsistent 
with the claim of common source asserted by appellee, and would have amounted to no evidence on that 
issue. The evidence does not raise an issue on the question of common source, and the court correctly 
refused appellants' special instruction requested, as shown by their eighth assignment of error.
        As to the contention of appellants that a division line between the lands owned by appellee and Dr. 
James I. Bonner had been agreed upon and recognized by them, by the location of which it appeared that 
appellants were entitled to the land in controversy or a part thereof, it is sufficient to say that the 
evidence was conflicting upon the issue, it was fairly submitted to the jury, they found adversely to 
appellants' contention, and we are not authorized to disturb their finding upon it.
        Upon the whole case, we believe a correct result has been reached. The controverted issues involved 
were submitted to the jury. Their findings thereon were favorable to the appellee. That Dr. John Bonner 
divided his landed estate among his children by way of partition, and that the same has been acquiesced 
in for many years by them, is placed beyond controversy by the facts and circumstances disclosed by the 
record, and is of that uncontradicted and conclusive character as would have warranted, at the hands of 
the court, a peremptory instruction upon that phase of the case. In this view of the case it becomes 
immaterial that the court may have erred in charging the jury in effect to find for appellee in case they 
believed from the evidence that Dr. John Bonner gave him the land in controversy and put him in 
possession thereof, regardless of valuable improvements having been made thereon by him on the faith of 
such gift.
        We believe justice has been attained in this case, a proper verdict and judgment rendered, that no 
reversible error is found in the record, and the judgment of the court below is affirmed.