173 S.W. 933 | Tex. App. | 1914
Lead Opinion
(after stating the facts as above). Gossett, appellant, insists the- testimony demanded that judgment be rendered in his favor for $738.75 and for lot 20, in block H, and lots 3 and 4, in block I, and in favor of W. R. Gossett for lot 21, in block H. This insistence is based on the contract of November 14, 1912.
“It would be a novel doctrine which, in the absence of positive fraud, would authorize a court to enforce specific performance of an oral agreement, or a written one not privily acknowledged, of a married woman, to convey her separate property in lands, which she could herself only convey in the manner and form provided by statute.”
It was not pretended that Mrs. Vaughan had agreed either verbally or in writing to convey the lots to appellant and W. R. Gos-sett, but merely that she had ratified a contract to do so made by her husband for her benefit.
The judgment is affirmed.
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Lead Opinion
Gossett, appellant, insists the testimony demanded that judgment be rendered in his favor for $733.75 and for lot 20, in block H. and lots 3 and 4, in block I, and in favor of W. R. Gossett for lot 21, in block H. This insistence is based on the contract of November 14, 1912.
It is clear that the contention, at least so far as it applies to the lots, should be overruled; for the court was without power, in the absence of a contract on Mrs. Vaughan's part, executed with reference to the requirements of the law, to divest her of the title to the lots and vest same in appellant and W. R. Gossett. Munk v. Weidner,
"It would be a novel doctrine which, in the absence of positive fraud, would authorize a court to enforce specific performance of an oral agreement, or a written one not privily acknowledged, of a married woman, to convey her separate property in lands, which she could herself only convey in the manner and form provided by statute."
It was not pretended that Mrs. Vaughan had agreed either verbally or in writing to convey the lots to appellant and W. R. Gossett, but merely that she had ratified a contract to do so made by her husband for her benefit. *936
As to the contention that judgment should have been rendered for appellant against Vaughan for the $733.75 mentioned in the contract of November 14th, it may be that the action of the court should not be sustained on the ground of misconduct on the part of appellant in the particulars set out in the statement above, because it appeared that Vaughan knew of such conduct at the time he entered into that contract. It may be, also, that the action of the court should not be sustained because of the absence of testimony showing that appellant had complied with his undertaking under that contract to place in escrow all deeds, papers, etc., held by him relating to the sale of the lots. We think it unnecessary to determine those questions, because we think it is a sufficient answer to the contention to say that appellant's suit was not on that contract, but on the contract of September 6, 1912, as will be readily seen by referring to the allegations in his original petition set out in the statement. Having declared on the contract of September 6th, appellant was not entitled to recover on proof of a breach of the contract of November 14th. It may be true that the contract of November 14th was sufficiently declared upon in the supplemental petition, but that was not the place to set up the cause of action relied upon, and we do not think the court was bound to look to that petition and treat it as a basis for his judgment. Rules 4 and 5 for the Government of District Courts (142 S.W. xvii); Ins. Co. v. Camp,
The judgment is affirmed.
"It is further ordered, adjudged, and decreed by the court that the written contracts of date September 6, 1912, November 8, 1912, November 12, 1912, November 14, 1912, and November 19, 1912, be and the same are hereby canceled and hereby adjudged and decreed to be null and void and of no further force and effect."
Appellant insists, and we agree, that the judgment is erroneous in so far as it cancels the contracts specified. Appellees in their cross-action alleged facts showing that appellant had repeatedly breached the contract of September 6th, but, as we understand the record, neither alleged nor proved facts entitling them to a decree canceling that contract, and certainly did not by either their pleadings or proof show they were entitled to have the other contracts, or any of them, canceled. For this error the judgment will be reversed, and, as we do not think on the record here we should undertake to reform and then affirm the judgment, the cause will be remanded for a new trial.
As noted in the opinion, appellant in his original petition sought a recovery on the contract of September 6th, and in his supplemental petition on the contract of November 14th. The purpose of the latter contract was to adjust the rights of the parties under the former contract. If appellant was entitled to recover on one of them, he was not entitled to recover on the other. If he had so complied with his undertaking under the contract of November 14th as to be entitled to enforce it, he was not entitled to a recovery, without reference to it, on the contract of September 6th. If he had not so complied with his undertaking under the contract of November 14th, then his cause of action against Vaughan, if any he had, was on the contract of September 6th, and he could not claim anything on account of the contract of November 14th. In that attitude of the case, the rights of the parties being unadjusted, same would have to be determined by reference to the contract of September 6th. It seems to us that the issues between the parties could be more satisfactorily determined on another trial if the parties were required to replead the case, and we suggest to the trial court the propriety of having them do so.
We adhere to the conclusion reached that, if the lots appellant seeks to recover belonged to Mrs. Vaughan's separate estate, he is not entitled to a decree devesting her of the title and vesting same in him and W. R. Gossett. Appellant's contention is that he was entitled to that relief because he was in the attitude of an innocent purchaser, in that, being ignorant of Mrs. Vaughan's claim, he dealt with Vaughan at a time when the deed to Mrs. Vaughan was not of record and the title to the lots appeared on the face of record to be in Vaughan. In support of his contention, appellant cites the statute (article 6824, R.S. 1911) which denounces "all bargains, sales and * * * conveyances whatever, of any land," as "void as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved and filed with the clerk, to be recorded as required by law." But, clearly, appellant was not within the protection of the statute. It has been construed as applying only to creditors who have acquired a lien against property on account of which it is invoked, and appellant was not such a creditor. As a purchaser he was not within the statute because it did not appear that he parted with anything of value on the faith of Vaughan's being the owner of the lots, and Vaughan's undertaking to convey same to him and W. R. Gossett was to pay a debt appellant and W. R. Gossett claimed he owed them.
The motion will be granted, the judgment will be reversed, and the cause will be remanded for a new trial. *937
Rehearing
On Motion of Appellant for Rehearing.
“It is further ordered, adjudged, and decreed by the court, that the written contracts of date September 6, 1912, November 8, 1912, November 12, 1912, November 14, 1912, and November 19, 1912, be and the same are hereby canceled and hereby adjudged and decreed to be null and void and of no further force and effect.”
Appellant insists, and we agree, that the judgment is erroneous in so fai as it cancels the contracts specified. Appellees in their cross-action alleged facts showing that appellant had repeatedly breached the contract of September 6th, but, as we understand the record, neither alleged nor proved facts entitling them to a decree canceling that contract, and certainly did not by either their pleadings or proof show they were entitled to have the other contracts, or any of them, canceled. Eor this error the judgment will be reversed, and, as we do not think on the record here we should undertake to reform and then affirm the judgment, the cause will be remanded for a new trial.
The motion will be granted, the judgment will be reversed, and the cause will be remanded for a new trial.
