384 S.W.2d 227 | Tex. App. | 1964
Appellant, Dolores Sparks Seligman, and appellee were husband and wife. Ap-pellee obtained a divorce from said appellant in June of 1952. The judgment in the divorce case recites that “the court finds from the pleadings and evidence that the parties had settled their community property rights prior to the filing of the suit.” The judgment makes no attempt to dispose of the community property or to state what the agreed division between the parties was.
On October 22, 1962, appellant, Mrs. Seligman, joined by her husband, filed suit against appellee, seeking to recover an undivided one-half interest in two tracts of land in Harris County, each containing
Appellee, in his second amended original answer, alleges that prior to the divorce the parties entered into an agreement partitioning the small amount of their community property. The agreement was that Mrs. Seligman was to receive the furniture and appellee was to receive the equity in land and an old automobile worth about $150.00 and he was to assume all community debts alleged to be about $1500.00 in amount. The furniture was alleged to have a value of approximately $1,000.00. The equity in the land was alleged to have been $875.-00. Appellee alleges that in reliance on the agreement he paid off, after the divorce, the balance due on the land and Mrs. Selig-man is estopped to assert any interest. He alleges he tendered the furniture to her but she told him to keep it as their son needed it. Custody of the 10 year old boy was given appellee by the divorce decree. Various statutes of limitation were pled.
The evidence shows that on July 22, 1948, during the marriage, appellee entered into a contract with the owners to buy the land for $2,160.00. Payment was to be made at the rate of $25.00 per month. Interest was at the rate of 5% per annum. If default was made in any payment, sellers at their option, could cancel the contract. If full payment was made, sellers agreed to convey by general warranty deed. In 1949 a separate contract was made as to each lot, reciting the consideration for each lot was $1,080.00.
We will not notice all of the trial court’s findings of fact, but only those that are determinative of the appeal.
He found that prior to the divorce the parties agreed upon a partition of their property. In this connection he found that at the time of the divorce $917.08 had been paid on the contract to purchase the land. By the agreement appellee was to receive and did receive all of the interest of the parties under the contracts of purchase and an old automobile. Appellee assumed community debts, other than that owing under the contract of purchase, in the amount of more than $1,000.00. Mrs. Seligman was awarded the furniture valued at approximately $1,000.00.
It was also found that Mrs. Seligman knew of the balance due on the contracts of purchase; that at no time had she paid or offered to pay any part of the balance owing or any taxes.
These findings of fact are supported by the evidence. The evidence was conflicting but the trial court has resolved the conflict.
We are of the view that the trial court’s judgment is sustainable, first, on the ground that the parties had in fact partitioned their community property as found by the trial court. The evidence as to values shows the division was fair and equitable.
Additionally, we are of the view that under the “contract for deed” if at the time of the divorce Mrs. Seligman had any equitable right to acquire an interest in the land she by her subsequent conduct abandoned her right and is now estopped to as
Judgment of the trial court is affirmed.