Goldberg v. Goldberg
| Decision Date | 15 March 1968 |
| Docket Number | No. 16899,16899 |
| Citation | 425 S.W.2d 830 |
| Parties | Morton N. GOLDBERG, Appellant, v. Mary Margaret GOLDBERG, Appellee. . Fort Worth |
| Court | Texas Court of Appeals |
Crumley, Rouer, Murphy & Shrull, and Franklin Moore, Fort Worth, Tex., for appellant.
Stone, Tilley, Parker, Snakard, Law & Brown, and Robert M. Randolph, Fort Worth, Tex., for appellee.
This is a suit in equity initiated by a former wife against her divorced husband to declare and foreclose an implied vendor's lien on realty to enforce collection of a money judgment awarded to her in the divorce decree in lieu of her one-half community interest in said realty. The case was tried to the same court in which the divorce judgment was rendered. The appellee and appellant will be hereinafter referred to as plaintiff and defendant, respectively, as in the trial court.
On August 12, 1964, to plaintiff was granted a divorce against the defendant in Cause No. 32692--F, 48th District Court, Tarrant County, Texas. The divorce judgment made a complete and final partition of all property, real and personal, owned by the parties. Under the judgment the improved realty here in question was awarded to the defendant. The judgment recited that the plaintiff's interest in such realty (homestead) was $3,870.24 and she was awarded a money judgment in such amount. The trial court, although it was urged to do so, refused to impress the real property in question with an equitable lien to secure payment of the said money judgment although at that time it had the authority to do so. The action of the trial court in dividing the property as it did and its refusal or failure to impress the lien was affirmed by this court. Goldberg v. Goldberg, 392 S.W.2d 168 ().
In this case, in equity involving the same parties, the court was again called upon to impress the realty in question with an equitable vendor's lien to secure the plaintiff's money judgment in the amount of $3,870.24.
The plaintiff, citing 28 Tex.Jur.2d 'Homesteads,' Sec. 163, p. 582, advanced the theory that the judgment of divorce created a judgment debt in exchange for defendant's acquisition of her 'right, title or interest' in the house and that such a debt clearly falls within the definition of a debt for purchase money and the lien thereby created is superior to any homestead right. Stated another way the plaintiff's theory is that an equitable implied vendor's lien for purchase money was created by operation of law at the time the divorce judgment was rendered because the court awarded her interest in the realty in question to the defendant and awarded the money judgment to her to compensate for her interest.
It is undisputed that the defendant remarried soon after the divorce action and that the property in question was his homestead at all times material to the instant case.
The trial court rendered judgment for the plaintiff and affixed an express equitable vendor's lien against the defendant's homestead (in nature of a vendor's lien for purchase money) in the amount of $3,870.24 and ordered the same foreclosed and sold as an execution.
In the trial court the...
To continue reading
Request your trial
-
Nowell v. Nowell
...National Bank of Waco, 139 Tex. 36, 41, 161 S.W.2d 467, 144 A.L.R. 1; Pavlas v. Pavlas, 428 S.W.2d 880, 881 (Tex.Civ.App.); Goldberg v. Goldberg, 425 S.W.2d 830, 831 (Tex.Civ.App.); 34 Tex.Jur.2d, Judgments, § The existence of the Connecticut antisuit injunction forbidding the defendant fro......
-
Davenport v. State
...court, or in any other judicial tribunal of concurrent jurisdiction, on points and matters in issue in the first suit." Goldberg v. Goldberg, 425 S.W.2d 830, 831 (Tex.Civ.App., Ft. Worth 1968, no writ history). See also McGuire v. Commercial Union Insurance Co., 431 S.W.2d 347 (Tex.Sup.1968......
-
McGoodwin v. McGoodwin
...not, nor could she have, litigated this cause of action in a previous suit. Cf. DeBord v. Muller, 446 S.W.2d 299 (Tex.1969); Goldberg v. Goldberg, 425 S.W.2d 830 (Tex.Civ.App.--Fort Worth 1968, no Correct resolution of the question presented requires first an understanding of the effect giv......
-
Ealy v. Ealy
...in a prior court having competent jurisdiction over the parties and the property. This point of error is also sustained. Goldberg v. Goldberg, 425 S.W.2d 830 (Tex.Civ.App.-Fort Worth 1968, no This Court's holdings on points of error numbered one and two render the discussion of appellant's ......