219 S.W.2d 845 (Tex.Civ.App. 1949), 2845, Forman v. Glasgow

Docket Nº:2845.
Citation:219 S.W.2d 845
Opinion Judge:TIREY, Justice.
Party Name:FORMAN et ux. v. GLASGOW.
Attorney:John B. McNamara, Jr., of Waco, for appellants. Orville M. Jobe, of Waco, for appellee.
Judge Panel:HALE, J., took no part in the consideration and disposition of this case.
Case Date:March 31, 1949
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 845

219 S.W.2d 845 (Tex.Civ.App. 1949)

FORMAN et ux.

v.

GLASGOW.

No. 2845.

Court of Civil Appeals of Texas, Waco.

March 31, 1949

Rehearing Denied April 28, 1949.

Appeal from District Court, McLennan County; D. W. Bartlett, Judge.

Suit by R. E. Lee Glasgow against Dr. Frank Forman and wife, Carrie L. Forman, for specific performance of a written contract to convey certain realty, and in the alternative for damages for breach of contract, and further in the alternative for treble damages for amount paid by the plaintiff in excess of rent ceiling established by the Office of Price Administration. From an adverse judgment, the defendants appeal.

Reversed and rendered in part and remanded in part.

John B. McNamara, Jr., of Waco, for appellants.

Orville M. Jobe, of Waco, for appellee.

Page 846

TIREY, Justice.

R. E. Lee Glasgow brought this suit against Dr. Frank Forman and wife, Carrie, L. Forman, for specific performance of a written contract to convey certain real estate in the city of Waco, and in the alternative for damages for breach of contract, and further an alternative plea for treble damages for amount paid by Glasgow in excess of rent ceiling established by OPA. Glasgow's rights are predicated on the fact that he is an assignee of T. F. Boltz, who made the contract with the Formans. Defendants answered with plea of coverture and that the property sued for was the separate property of Mrs. Forman. The trial was without the aid of a jury and the court found that the property involved was community property of defendants and entered a decree for plaintiff. This decree in effect divested the fee simple title to said property out of defendants and vested the same in plaintiff Glasgow. The decree further provided that the Formans recover the sum of $65 deposited in the registry of the court by plaintiff and the further sum of $4,711.97, and provided that this sum would constitute an equitable lien against the property and foreclosed the same in favor of defendants at the expiration of forty days from the date of the judgment, provided said sum of money had not been paid to defendants, and also provided for appropriate writs in behalf of plaintiff and defendants. All parties excepted to the decree entered and gave notice of appeal, and the Formans have perfected their appeal.

The judgment entered is assailed by the Formans substantially on the ground that the court committed error in finding that the property involved was community property of the Formans for the reason that there was no evidence on which to base such finding; and since it was without dispute that Mrs. Forman is a married woman, she did not have the legal capacity, although joined by her husband, to enter into a binding contract for the conveyance of her separate property. We sustain these contentions.

The pertinent facts are without dispute. On February 4, 1918, the property in question, together with other property, was conveyed (record in Deed Records February 8, 1918) by Chas. S. Savis to Dr. Frank Forman and became the community property of Dr. Forman and his wife. On July 23, 1938, Dr. Forman, by warranty deed (recorded in Deed Records on same date) conveyed the property in question, together with other property, to Carrie L. Forman. The consideration recited in this deed was $5. There was nothing in the deed that stated that Dr. Forman was conveying the property to his wife as her separate property. On October 30, 1943, Mrs. Forman entered into a written contract with T. F. Boltz, which instrument designated her as 'first party' and T. F. Boltz as 'second party', which instrument recited that it was a purchaser's contract. Dr. Forman's name does not appear in the body of the instrument, but he executed it with her but neither acknowledged the instrument. This contract bound the first party to sell and convey to the second party Lot 3 and the East one-half of Lot 4 in Block 6, Ginnochio Addition to the City of Waco for a total consideration of $7,000, payable $65 in cash and the balance at $65 per month, with interest at the rate of 5% per annum, the monthly installments to include both principal and interest, the payments beginning December 1, 1943, and continuing until the principal and interest are paid, and further agreed that when $1,000 and interest had been paid that the first party would execute and deliver to second party a warranty deed to the...

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