*1 derived hi's income was ject debt to such intoxicants. illegal
from sale bring himself
Appellant does newly evi discovered rules
within the as' re the court contention that
dence and his for a new motion consider his
fused .to issues him in that the has not harmed
trial raised, newly dis than other
have all been points error evidence, in his
covered 434, Vernon’s herein. Rule
considered Procedure.
Texas Rules of Civil error points
In that a number solely lack of predicated
cause are cause, called attention is
pleadings in the Civil 67, Rules of Texas
to Rule Vernon’s Garrett, 148 Tex. Strong v. Procedure and 471, syl. 16. (Sup.Ct.) forth points hereinabove set error points of asserted Other
sustained. the cause. a retrial of
may not occur on re- court is the trial judgment of under remanded and the cause
versed and the funda-
points of error sustained apparent in the record.
mental errors al. et et al. v. SOULES
KRESS
No. 10096. Appeals Austin. Texas. Civil
Court of 28, 1953.
Jan.
Rehearing Denied Feb. *2 contract,
tion of the that a loan commitment ready had been obtained sale was closing. On July, the 25th of Kress told Mr. *3 property he had sold the man to another money requested for more and a release from his contract. This Soules refused. 27th, July pendens On and this suit a lis by Corenbleth, Jaffe, & Thuss Morris I. day notice was filed the but and on same Jaffe, Dallas, appellants N. Kress for C. subsequent pendens to the time lis the Rouse, Sr. and Willie Rouse, appellant was filed Kress and Willie Alexander, Passman, George, Russell & Sr., appellant, conveyed who also the is an Russell, Dallas, by appellant Pat S. for controversy in property Frederick A. to appellee Martens. Frederick C. and/or Martens, appellant appellee, an also and an Andress, Dallas, appellee Jr., for Wm. by deed, general warranty for con- a total H. Luther Soules. $18,500, $5,500 sideration of of which was paid $13,000 represented by in and cash Dallas, Bowyer, intervenor Otis for and assigned vendor’s lien note which was to appellee Kathryn Currin. Compa- the Southern Trust and Mortgage ny, HUGHES, a defendant below. This deed was filed Justice. July for record principal in sought The this case relief possession has been in the con- is a written property deed, since the the for real estate. date tract the sale of such stipulated rental value of which be was to Soules, appellee, plain- an Luther H. per month. $100 purchaser below, was the and N. tiff C. Kress, Kress and Rouse claim that appellant, they was the were an seller. joint of the owners in suit vir- 20, contract, July 1950, dated was The agreement: tue of this upon Sale made a Standard Contract form Kress, “N. 21, party C. named first in being Lot and described agreement, this and Willie Rouse &. Block Casa Linda Estates also F/5314 this, Son, Dallas, known as the second Vista in known as Bella Dallas agreement agree as County, purchase price follows: Texas. was $17,500, paid cash, of which was $500 party first “The the owner of' upon delivery payable deed. balance 21, lot Block F located at 1429' provided contract it was also Vista, Dallas, par- Bella second contingent upon purchaser securing a first ty, being building contractor, agree- twenty-year 4per mortgage cent lien to build house according- on this lot $13,000 Possession was plans Sears, made E. ar- Jack upon closing delivered the trade to be chitect. Kathryn Currin, agreed pay real- seller house “This is built for sale the- tor, “usual” commission. proceeds from sale disposed, should be bought stipulated was this It of as follows: lot that “he that title still had $2,500.00 “The amount of be- should July on 1950.”1 paid party lot, first the- n amountof contract was for record This filed paid will be $500.00 County July 24. Deed Records on Dallas party supervision second for their of' building, remaining part never consummated or offered to the- proceeds, Soules al- after covering his contract with consummate the mechanics- alleged agent Lingo advised lien though Mr. Lumber Company,, Kress, day or two after execu- should profits within a be considered froim subsequent 1. All dates are 1950. be- The trial resulted this equally nonjury was this transaction and divided
.
agreement.
judgment.
parties in this
tween both
Specific performance
be-
parties have made the above
of the contract
“Both
tween
decreed
mechanics
was
agreement
before the
and Soules
orally
required
confirming
paid by
es-
signed
sum
be
lien has been
money judgment
18th
tablished. A
herewith
writing
same in
Kress and
day
Willie
Sr.
awarded
January 1950.”
August 1
per
Soules for
month from
$100
recorded
This instrument
possession
delivery
until
any)
(if
title
Rouse’s
constructive notice of
as reasonable rental therefor.
of a
recording
alleged
'follow from
*4
Exemplary damages in the sum of $750
pursuance
lien made
mechanic’s
against
was
N.
awarded Soules
C.
recited that Willie
agreement
above
which
Rouse,
and Willie
Sr.
Rouse,
proper-
Kress own the
Sr. and N. C.
Rouse, Sr.,
adjudged
Willie
to have
ty
simple..
lien was
was
fee
Such
dated Jan-
uary
property
no interest in
January
record
interest
3 and
filed
on
was
therein of
January 30
Me-
Martens was declared subordi-
and was recorded
in the
County.
rights
nate and inferior to the
of Soules.
chanic’s Lien
of Dallas
Records
$13,000
mortgage
held
South-
further
Kress and Rouse
claimed
Company
ern Trust
Mortgage
de-
was
Kathryn
agent Kress
Currin was not the
of
creed to be a
valid first lien
appellee
agent
was
fact
$6,247.50
she,
damages
Actual
agent
and exem-
through
and that as such
Soules
plary
$1,500
repeatedly
damages of
Mahaffey,
her
been
awarded
agent
had
Martens
had an
in the
N. C. Kress
Willie
informed that Rouse
interest
Rouse,
no
could
Sr.
property and that
trade or contract
signature,
be
his
made without
consent and
judgment
Intervenor Currin was awarded
actually
had
this information
been
against N. C. Kress for $875.
imparted to Soules.
findings
No
conclusions
of fact or
of law
requested
were
or filed.
Appellant Martens defended Soules’ suit
pur-
on
he
ground
that was an innocent
Appellants
have
Kress and Rouse
filed a
notice,
chaser for
without
or
value
actual
joint
appellant
sepa-
brief and
Martens a
constructive,
his contract with Kress and
points
dispose
rate
brief.
will
We
inequitable
any
be
event
to de-
it would
Rouse.
made Kress and
he,
specificperformance
cree
because
point
Their first
is that
court erred in
property
married, bought the
a home.
as
granting
performance. The rea-
filed a cross action for dam-
Martens also
numerous,
assigned
more than
sons
are
four
ages against Kress and Rouse in the event pages
required
to state
brief
them.
pleas
neither of
above
sustained.
principal
We will state the
reasons and an-
rights,
inception
any,
swer all.
of the
if
in the
is a contract of
assigned
The basic reasons
are that
signed by
20 and
Willie
July
sale dated
in the
owned
interest
Jr.,
Rouse,
C.
as seller
H. Martens as
since
which
notice and
Soules had
he has
purchaser.
conveyed
convey
agreed
or
not
Soules
specific performance against
Mortgage
Trust and
Com-
The Southern
ineffective; also
alone would
that under
be
below, filed
pany,
general
a
de-
a defendant
specific performance
circumstances
nial
its
as
answer.
inequitable
be
to Martens.
would
as
Currin, realtor,
al-
Kathryn
intervened
agent
between
was the
The contract
Kress and
leging she
Kress and was
Rouse, Sr.,
purport
be a
pro-
convey
commission for
not
having
to a
did
entitled
there is no
with ance of
evidence be
realty
cured the execution
contract
The agree-
intended.
fore us that it was so
Soules.
joint
nothing'
than
ment
more
evidences
We have considered other conten
parties, the
tions
point
adventure of the
interest
made under this
such as that the
portion
Rouse,
being confined to a
of contract
Sr.
between
not
Soules
did
and Kress
profits
prop sufficiently
arising
from sale
describe the
and that
erty. Rouse,
had no interest in the
Sr.
land.
has not tendered
his
Carnine, Tex.Civ.App.,
they
S.W.
are overruled.
Jowell
2d 511
C.C.A.,
Paso,
ref.), Mar
(El
writ
The description
adequate.
Short
aof
Morrison, Tex.Civ.App.,
tin
S.W.
description
metes and
given
bounds
the one
Paso, C.C.A.,
(El
j.),
writ dism.
o.w.
complete
contract is as full and
Tex.Civ.App.,
Jones,
Snover
172 S.W.
it could be.
Paso, C.C.A.).
1122 (El
alleged
that he had notified
“
questions
eliminates all
holding
This
* * *
that he had secured
may may
notice which Soules
or
such mortgage
prepared
and was
close
concerning
have
ti-
interest or
received
sale,
the contract and consummate the
tle of
Sr.
”
* *
demanded execution of the deed.
however,
say here,
We
that the
should
testimony
His
import.-
ofwas
similar
Un-
implied
evidence is sufficient to sustain an
der the circumstances of this case we hold
*5
Currin,
realtor,
finding that
the
the
that
pleading
such
and evidence is tanta-
agent
he list-
of Kress. Kress testified that
performance
mount to a tender of
property
ed the
for sale with her and he al- part of Soules.
signed the
which recited
so
Soules’ contract
Appellants
.
Kress’ and Rouse’s second
Kathryn
agent
that
the
Currin was
of point complains
portion
of
judg-
that
the
of
Kress.
awarding
ment
exemplary damages
Soules
damages
and
for rent.
inequities
of the case as to Mar
(cid:127)
assumption
predicated
tens are
on
that
the
The main contentions made under this
purchaser.
he
innocent
was an
Martens point are that this was not a suit for dam-
pur
purchaser.
was not an innocent
He.
ages
performance
for
of a con-
pendente lite. His contract with
chased
exemplary
tract and that
damages are not
Rouse,
consequence
was of no
because
action.;,
recoverable in
Jr.
such an
that
also
had no title.
pleaded.
fraud was not
Jr.
Also that
rental
premises
value' of the
is not the
Rouse
.The
of
and
contention Kress
proper
damage,s.
appel-
measure of
As to
require long
herein
judgment
that
will
lant Rouse it is contended
he is not
that
supervision,
opposed, is
equity is
to which
any
in
damages
liable
event for
because
being
factual basis.
overruled
without
he had no contractual .relations with Soules-
objection
judgment
Their
that the
property
Rental value
may
of
require
perform
does not
Soules to
his
by
purchaser
be recovered
in a suit for
contrary
of the contract
to the terms of
is
specific performance of a contract for the
objection
time
judgment
and the
that
sale of real estate from the time
de
that
not
is
for such
is
fixed correct.
specific performance
mand for
and tender
(cid:127)
A
read into the
reasonable time will be
purchase price
of
Slaughter
is
made.
controversy
judgment
any
concerning
Roark, Tex.Civ.App., 244
(El
S.W.2d 698
by the trial
the same will be determined
C.C.A.,
Paso,
ref.,
writ
n.
(cid:127)
r. e.).
court:
damages
by
suffered
appellants
suggest
also
that
These
wrongful
property
detention -of his
prop
act
the court
to
powerless
was.
a basis
damages
of actual
suffi
furnishes
cient
the wife of
not
erty because
Martens was
support,
recovery
exemplary
a
suit,'
party
to the
her
damages. Steinberg Morgan,
Tex.Civ.
There -is no merit
in this.
homestead.
App.,
(Amarillo,
That
notified
avoid,
attempted
Kress and
have
Rouse
Kress,
he,
released from his contract
evade
defeat
extraneous tortious
'
him in
would cloud
title and involve
though
acts and conduct. Even
such acts
lengthy litigation.
alleged
It
was- also
contract,
conduct
-and
involve
breach
Kress
.Rouse were in
the actions of
exemplary damages are
recoverable
disregard
rights
(cid:127)wanton
óf
Soules’
&
commission. Southwestern Gas
their
were
malicious
wilful.
Stanley,
Electric
Co. v.
Tex.
413;
Rodriquez,
Briggs
Tex
.
supports
pleadings.
The evidence
these
.Civ.App.,
Antonio,
(San
brought for the Tex.Civ.App., Corp. State, estate. and Gulf Oil of real purchase the sale or sion C.C.A., writ). Paso, (El Tex. 170 no Tennant, 147 S.W.2d & Montandon Buratti 742. 842, A.L.R.2d 536, 218 S.W.2d subsequent to These cases were decided V.A.C.S., has been 1927 when Article separate brief The points amended read: find the to and we carefully examined the issue concerning made there pendency1 “All such notices made those to to so similar be shall notice to all world of their be require fur- not to Rouse as by Kress and that the or men- contents and suit suits are overruled They discussion. ther such pending, tioned therein are stated. hereinabove reasons operate notices shall soon as filed record, county with the clerk for motion has filed a Appellee provided Chapter in this whether serv- ground that appeal on the dismiss parties has ice been had on the to said bonds, each supersedeas there are several suit or not.” portions supersede different purporting to provision than one such be that the notice was to judgment, rather practice or proper regardless effective is was not service Whether this bond. in addition because the former statute. decide need not not we filed there was supersedeas bonds by appellants None cited of the cases vested this bond which filed cost also refer to this Article. appeal. The jurisdiction with Court The Barker case involved the effect of is overruled. motion to dismiss days deed made two after a suit was filed filed a motion also Appellee Soules September This was be- even appellants Kress brief strike original pendens fore enactment of a lis pre- was not it ground statute in 1905. briefing with the pared in accordance The Chronicle case involved the effect imperfections There Rules. judgment trespass try ain title case require such nature as but not brief pendens where “No lis notice was ever overruled. rebriefing. The motion filed in trespass connection such with is af- court of the trial judgment try title action”. [128 115.] *7 Currin and except to intervenor firmed as The Gulf case was a venue suit in which her is reversed and favor judgment in question was whether a certain suit was that she take noth- rendered judgment here “pending” when an amendatory law became intervention. ing her effective. The Court said [170 apportioned and ad- appeal are Costs 800]: Currin, Kathryn judged: $20 “Numerous authorities are cited sus- and Rouse. against Kress balance taining proposition that within the part and reversed Affirmed meaning pendens law, of the lis a suit rendered. regarded pending juris- is not until diction over the Rehearing by defendant has been ob- Motion for On Sustaining perfectly tained. this sound Appellants Kress and proposition, numerous authorities are in error say we Appellants 325-326; cited. Houston Tex.Jur. Martens were Mrs. Mr. and holding that Bergman, Chronicle Pub. Co. v. Tex. They bought lite. aft pendente purchasers Civ.App., 128 S.W.2d writ dis- filed but be pendens notice the lis er missed. vendors, had their fore purpose variant They widely is the process. cite Hous “So with served been pen- law and Company Berg a venue the law as to lis Publishing Chronicle ton dens, analogy pre- we think an (Gal. is not Tex.Civ.App., 128 S.W.2d man, dism., Temple C.J.), Barker sented.” C.C.A., writ provided pendens for in Art. V.A.C.S.
1. Lis fairly We do not believe that it can be apply any of these
said that cases failed they misapplied
or Article or that
conflict with decision here. our any apply Article
In event we purchas
6643 and the Martens to be hold pendente though
ers even their lite vendors process
had not this been served with
suit when the sale was made.
The motion is overruled. Perales, Berry
Harry B. and Alonso S. Antonio, appellant. San Pope, Jr., City, A. Rio Grande John appellee. MENDOZA MENDOZA. POPE, Justice. No. 12511. Appellee husband, appellant, sued her Appeals Texas. Court Civil for a properly divorce and for a settlement. San Antonio. divorce, granted court trial 4, 1953. Feb. appeal only concerns
rights parties. parties have no minor children. September 27, 1927,appellant’s
On moth- er and father executed deed which they conveyed to him a small tract of land sixty-two described “the North feet Lot (62.4) Numbered Six (6), off 4/10 in Block Sixty-four (64) Numbered situ- City ated and of Rio Grande City, County, Starr Texas.” The deed appellant paid parents recited that his $682, sum of and that a vendor’s lien se- amounting cured certain notes addi- *8 $1,818. Thereafter, May 25, 1929, tional appellant appellee married. After marriage, portion their a second deed to a by ap- the same was executed pellant’s mother, his father having died. deed second was executed on June conveyed appellant “The North forty one-tenth (40.1) feet off of Lot Sixty-Four in Block (6), No. Six No. (64), City situated and of Rio City, County, Starr Grande Texas.” adjudged decree described in community deed to be the second partitioned it and equally and ordered between the divided husband and wife.