163 S.W. 659 | Tex. App. | 1914
Appellant sued appellees in trespass to try title, and to compel specific performance of a contract to convey 40 acres of land out of the Neeley survey in Van Zandt county. Jury trial was waived by all parties. Judgment in the court below was for the appellees.
There is no statement of facts in the record; but it does contain the conclusions of fact prepared and filed by the trial court. The facts so found and essential to a determination of this appeal are in substance as follows: Appellee Horace Thompson, in December, 1911, was a married man, and the 40 acres of land in controversy was the homestead of himself and wife, Mattie; but the land so occupied was the separate property of said Horace Thompson, being also all the land owned by either Thompson or his wife. At the date named Horace Thompson agreed to sell the land to appellant, and to execute deed therefor, joined by his wife, Mattie, the consideration to be $500, of which amount a small proportion was to be in cash, and the balance in two equal payments, one in the autumn of 1912, and one in the autumn of 1913, secured by the vendor's lien. The cash payment was made at the time appellant and Horace Thompson made the agreement detailed, and at which time Horace Thompson and wife, Mattie, with her consent, removed from the 40 acres to a rented place at that time occupied by appellant Hudgins, who at the same time removed to and occupied the 40 acres, and continued in possession thereof up to the time of the trial, to wit, April 11, 1913. Mattie, the wife of Horace Thompson, knew nothing whatever of the agreement to purchase and convey by and between her husband and appellant, and at no time agreed or consented thereto. Matters standing thus, and Mattie Thompson, so far as the record discloses, being in ignorance of the agreement, she and her husband, in November, 1912, by statutory deed, conveyed the land to Frank Thompson for $550. At all times, even subsequent to the execution of the deed to Frank Thompson, and prior to appellant's knowledge *660 thereof, Horace Thompson assured appellant that a deed would be made to him as agreed. Prior to the sale of their homestead to Frank Thompson, appellee Horace Thompson and his wife acquired no other homestead. Shortly after selling to Frank Thompson they did acquire another homestead, and was occupying same at the time of trial. Upon discovery of the deed to Frank Thompson, this suit was instituted against both Thompsons and their wives, with the result stated.
The court's second conclusion of law is that the contract between appellant and appellee Horace Thompson was not enforceable, because the land continued to be the homestead of Thompson and his wife until they conveyed same by statutory deed to Frank Thompson. If the testimony supports the court's conclusion of fact, and the court's conclusion of law upon the facts is correct, it is determinative of all other questions in the case, and for that reason we consider that feature of the appeal first. A contract of any kind by the wife to convey the homestead is not enforceable against her, since the only manner in which she may convey is by deed acknowledged in the manner provided by law. It was said in Eberling v. Deutscher Verein,
Entertaining the views we do with reference to the law of abandonment, and the facts on appeal failing to show an abandonment by Mattie Thompson, a consideration of issues collateral thereto is unnecessary, and accordingly the judgment is affirmed.