Dipuccio v. Hanson, 12198

• Decision Date: 12 October 1950
• Docket Number: No. 12198,12198
• Citation: 233 S.W.2d 863
• Parties: DIPUCCIO et vir. v. HANSON.
• Court: Texas Court of Appeals

Page 863

233 S.W.2d 863

DIPUCCIO et vir. v. HANSON.

No. 12198.

Court of Civil Appeals of Texas, Galveston.

Oct. 12, 1950.

Kleinecke, Nussbaum & Piperi and H. E. Kleinecke, Jr., all of Galveston, for appellants.

Henry W. Flagg, Galveston, for appellee.

CODY, Justice.

Appellee, S. T. Hanson, brought suit in the District Court of Galveston County against Dominick Dipuccio to enforce specific performance of a written contract dated June 11, 1949, wherein the said Dipuccio bound himself to convey to appellee by a general warranty deed, for the cash consideration of $4,500, the East half of Lots Nos. 315 and 316 in Alta Loma Townsite, Galveston County. By way of answer to appellee's petition, the said Dipuccio alleged among other things:

That he, said Dipuccio, has been willing at all times to perform his said contract by executing a general warranty deed conveying the property to appellee, but that the contract in question is indivisible, and that not less than one-half of said real estate was the separate estate of his wife, Ana Dipuccio, and that she was not a party to the contract of sale, and that she refused to execute a deed thereto, and that she could not be required so to do. Descending to particulars, the said Dipuccio, alleged that the land was purchased by him and his wife in 1932, and the deed to them was taken in both of their names. That in making the purchase, they paid $800, of which sum his wife advanced the sum of $500 which belonged to her in her separate right and estate, and that he, said Dipuccio, intended that his wife should own at least an undivided one-half interest in the land as her separate right and estate in order to repay her in part for the advancement by her of her separate property in the sum of $500.

Appellee filed a supplemental petition in answer to the allegations of the said Dipuccio's answer, the substance of which we consider it unnecessary to give, other than to state that appellee did not seek to have Ana Dipuccio made a party defendant; and she was not made a party defendant to said suit. The suit was then tried to the court without the aid of a jury, and on the 16th day of January, 1950, the court rendered judgment, finding therein as a fact that the land in question was the community property of the said Dipuccio and his wife, Ana.

No notice of appeal by Dominick Dipuccio from said judgment is recited therein, or otherwise shown upon the record. Nor was any direct attempt to appeal therefrom made by Dominick Dipuccio. However, on January 18, 1950, Ana Dipuccio, joined by her said husband, filed a motion asking the court to set aside and vacate the judgment, and grant a new trial and permit the said Ana to intervene in the suit. It was alleged in said motion, in some detail, that Ana Dipuccio owned at the time of the purchase of the property in 1932, as her separate property and estate, the sum of $500. That said sum was used in the purchase price of $800, and it was alleged that to the extent that said sum bore to the purchase price of the land in question, said land was and became the separate estate of the said Ana Dipuccio, the remainder thereof being the community estate of the Dipuccios. The motion also alleged that, as more than half of the title belonged to the wife, as her separate estate, and she was not a party to the contract, no specific performance of the contract could be decreed either against the wife or the husband.

Appellee filed an answer to the aforesaid motion to vacate the judgment, and we need only say that the effect of Ana Dipuccio's motion, together with appellee's answer thereto, was to raise the same issues as had been raised by the pleadings between appellee and Dominick Dipuccio, the husband. The court, hearing said motion rendered judgment thereon, February 1, 1950, overruling same and it was recited in the judgment overruling said motion, 'To which action and ruling of the Court the movant, Ana Dipuccio, in open court excepted and gave notice of appeal * * *.'

Then on February 10, 1950, the movant filed a written request for the court to state separately in writing conclusions of fact and law both on the hearing upon the judgment which was rendered on January 16, 1950, as well as on the hearing on Ana Dipuccio's motion to vacate said judgment. The Court complied with said request, and so far as we deem it necessary to give the fact findings relative to both the hearing on the pleadings of appellee and Dominick Dipuccio and on the motion of Ana Dipuccio, said findings are to the effect:

That Dipuccio and wife, Ana, acquired title to the property here involved on December 6, 1932, by a general warranty deed which recited that the grantors therein 'for and in consideration of the sum of Ten Dollars in cash, and other valuable considerations to us in hand paid by Dominick Dipuccio, and Anna Dipuccio, the receipt whereof is hereby...