Gleich v. Bongio, 2030-6778.

• Decision Date: 06 January 1937
• Docket Number: No. 2030-6778.,2030-6778.
• Citation: 99 S.W.2d 881
• Parties: GLEICH et al. v. BONGIO et al.
• Court: Texas Supreme Court

99 S.W.2d 881

GLEICH et al. v. BONGIO et al.

No. 2030-6778.

Commission of Appeals of Texas, Section A.

January 6, 1937.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by Bertha Bongio Gleich, joined by her husband against Felix Bongio and others. To review a judgment of the Court of Civil Appeals [71 S.W.(2d) 291] reversing a judgment for the plaintiffs and rendering judgment for defendant, the plaintiffs bring error.

Judgment of trial court and Court of Civil Appeals reversed and cause remanded.

A. M. Waugh, of Houston, for plaintiffs in error.

E. R. Campbell, of Houston, for defendants in error.

HICKMAN, Commissioner.

This is a suit by plaintiff in error, Bertha Bongio Gleich, joined pro forma by her husband, August Gleich, Jr., against defendants in error, Felix Bongio, Sam Bongio, and the latter's wife, Margaret, to recover an undivided interest in certain lots situated in the city of Houston and for partition and an accounting. Felix Bongio was formerly the husband of plaintiff in error. No statement of facts accompanies the record, but the transcript contains a stipulation with regard to certain facts and the following findings of fact made by the trial court:

"The Court finds that the following are the material facts proved in this case:

"I. That Felix F. Bongio and Bertha Bongio had been man and wife for approximately nine (9) years when divorced on or about the 5th day of May, 1930.

"II. That during the coverture of plaintiff, Felix F. Bongio and Sam Bongio purchased Lots one (1) Two (2) Three (3) Twelve (12) Thirteen (13) and Fourteen (14) in Block one (1) of the Brady Addition to the City of Houston, at a price of Twelve Thousand Dollars ($12,000.00) paying therefor the sum of Five Thousand Dollars ($5,000.00) Two Thousand Dollars ($2,000.00) of which was shown as paying the full purchase price of Lot Number Three (3) and Three Thousand Dollars ($3,000.00) been applied on the remaining five (5) lots, leaving Seven Thousand Dollars ($7,000.00), deferred payments thereon, secured by a vendor's lien on said five (5) lots.

"That the cash payment of Five Thousand Dollars ($5,000.00), was made out of the separate estates of Felix Bongio and Sam Bongio, and that this same constituted their respective entire separate estates.

"That subsequently lots Twelve (12) Thirteen (13) and Fourteen (14) were sold for a cash price of Eleven Thousand Five Hundred Dollars ($11,500.00), out of which the Seven Thousand Dollars ($7,000.00) vendor's lien was retired.

"III. That on October 26, 1929, Felix Bongio and Sam Bongio, joined by their wives, executed a deed of trust on the remaining lots to D. Guarino, to secure a note for Thirty-five Hundred Dollars ($3,500.00) for the purpose of constructing improvements on the said lots.

"IV. That there was no agreement at any time between Felix Bongio and Bertha Bongio that the said property in the Brady Addition, so purchased, was intended to be or become the separate property of Felix F. Bongio.

"V. That the parties agreed between themselves as to the division of their personal community property at the time of their separation and in regard to their real property with the exception of the said six (6) lots in question in the Brady Addition, and part of this agreement consisted in the premises of Felix Bongio to pay the plaintiff the sum of Two Hundred Fifty Dollars ($250.00), for her interest in a separate lot, Fifty Dollars ($50.00) of which has been paid, leaving Two Hundred Dollars ($200.00) still due."

In the trial court it was decreed that plaintiff in error recover a 7/48 interest in and to lots 1, 2, and 3, subject to the indebtedness existing against same, together with the sum of $200, balance due under the settlement agreement. The decree adjudged "that a partition is here made," but no commissioners were appointed to make partition in kind, nor was any provision made for the sale of the lots and division of the proceeds. The decree contained a further provision "that in all other matters in controversy that plaintiff take nothing from defendants and that defendants recover nothing from plaintiffs by reason of their cross action." These provisions leave some uncertainty as to what disposition was made of the prayer for partition, but, since the case is to be remanded to the trial court, we deem it unnecessary to construe the judgment with reference to the question of partition. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that plaintiff in error take nothing by her suit to recover an interest in the lots. 71 S.W.(2d) 291. In our opinion neither judgment is correct.

It is obvious, we think, that plaintiff in error has no interest in lot No. 3. By the findings of fact that lot was purchased by Felix and Sam Bongio for $2,000, all of which consideration was paid in cash with their separate funds. No community funds or obligations formed a part of the consideration. That portion of the trial court's judgment awarding plaintiff in error an interest in that lot is erroneous. Since plaintiff in error practically concedes error in this particular, no further discussion thereof seems appropriate.

The status of lots 1 and 2 is different. These lots together with lots 12, 13, and 14, were purchased by Felix and Sam Bongio for $10,000. The cash payment of $3,000 made on the purchase price was from their separate funds, but the deferred payment of $7,000 was evidenced by notes secured by a vendor's lien on all five lots. Later, Lots 12, 13, and 14 were sold for $11,500, and it was out of that fund that the deferred payment of $7,000 was made. The question thus presented is: What is the status of property, with reference to its being separate or community, when purchased during marriage partly with separate funds of the husband and partly on the credit of the community? The question presented cannot be distinguished from one in which a part of the purchase price is paid with the separate funds of...