Kress v. Soules
| Decision Date | 28 January 1953 |
| Docket Number | No. 10096,10096 |
| Citation | 255 S.W.2d 244 |
| Parties | KRESS et al. v. SOULES et al. |
| Court | Texas Court of Appeals |
Corenbleth, Thuss & Jaffe, by Morris I. Jaffe, Dallas, for appellants N. C. Kress and Willie Rouse, Sr.
Alexander, George, Russell & Passman, by Pat S. Russell, Dallas, for appellant and/or appellee Frederick C. Martens.
Wm. Andress, Jr., of Dallas, for appellee Luther H. Soules.
Otis Bowyer, Dallas, for intervenor and appellee Kathryn Currin.
The principal relief sought in this case is specific performance of a written contract for the sale of real estate.
Luther H. Soules, an appellee, and plaintiff below, was the purchaser and N. C. Kress, an appellant, was the seller.
The contract, dated July 20, 1950, was made upon a Standard Sale Contract form and described the property as being Lot 21, Block F/5314 Casa Linda Estates also known as 1429 Balla Vista in Dallas, Dallas County, Texas. The purchase price was $17,500, $500 of which was paid in cash, the balance payable upon delivery of deed. The contract also provided that it was contingent upon purchaser securing a first lien twenty-year 4 1/2 per cent mortgage for $13,000 on the property. Possession was to be delivered upon closing the trade and seller agreed to pay Kathryn Currin, realtor, the 'usual' commission.
It was stipulated that Kress bought this lot in 1946 and that 'he still had that title on July 20, 1950.' 1
This contract was filed for record in the Dallas County Deed Records on July 24.
Kress never consummated or offered to consummate his contract with Soules although Mr. Soules advised the alleged agent of Kress, within a day or two after execution of the contract, that a loan commitment had been obtained and the sale was ready for closing.
On the 25th of July, Mr. Kress told Soules that he had sold the property to another man for more money and requested a release from his contract. This Soules refused.
On July 27th, this suit and a lis pendens notice was filed and on the same day but subsequent to the time the lis pendens notice was filed appellant Kress and Willie Rouse, Sr., who is also an appellant, conveyed the property in controversy to Frederick A. Martens, also an appellant and an appellee, by general warranty deed, for a total consideration of $18,500, $5,500 of which was paid in cash and $13,000 represented by a vendor's lien note which was assigned to the Southern Trust and Mortgage Company, a defendant below. This deed was filed for record July 31.
Martens has been in possession of the property since the date of such deed, the rental value of which was stipulated to be $100 per month.
Kress and Rouse claim that they were joint owners of the property in suit by virtue of this agreement:
'N. C. Kress, named the first party in this agreement, and Willie Rouse & Son, known as the second part in this agreement agree as follows:
'The first party being the owner of lot 21, Block F 5314, located at 1429 Bella Vista, Dallas, and the second party, being a building contractor, agree to build a house on this lot according to plans made by Jack E. Sears, an architect.
'This house is built for sale and the proceeds from sale should be disposed of as follows:
'The amount of $2,500.00 should be paid to the first party for the lot, the amount of $500.00 will be paid to the second party for their supervision of the building, the remaining part of the proceeds, after covering the mechanics lien of the Lingo Lumber Company, should be considered as profits from this transaction and equally divided between both parties in this agreement.
'Both parties have made the above agreement orally before the mechanics lien has been signed and are confirming same in writing herewith on this 18th day of January 1950.'
This instrument was not recorded but constructive notice of Rouse's title (if any) is alleged to follow from the recording of a mechanic's lien made in pursuance to the above agreement which recited that Willie Rouse, Sr. and N. C. Kress own the property in fee simple. Such lien was dated January 3 and was filed for record on January 11, and was recorded January 30 in the Mechanic's Lien Records of Dallas County.
Kress and Rouse further claimed that Kathryn Currin was not the agent of Kress but was in fact the agent of appellee Soules and that as such agent she, through her agent Mahaffey, had been repeatedly informed that Rouse had an interest in the property and that no trade or contract could be made without his consent and signature, and that this information had actually been imparted to Soules.
Appellant Martens defended Soules' suit on the ground that he was an innocent purchaser for value without notice, actual or constructive, of his contract with Kress and in any event it would be inequitable to decree specific performance because he, being married, bought the property as a home. Martens also filed a cross action for damages against Kress and Rouse in the event neither of the above pleas was sustained.
The inception of the rights, if any, of Martens in the property is a contract of sale dated July 20 and signed by Willie Rouse, Jr., as seller and H. C. Martens as purchaser.
The Southern Trust and Mortgage Company, a defendant below, filed a general denial as its answer.
Kathryn Currin, realtor, intervened alleging she was the agent of Kress and was entitled to a commission for having procured the execution of the contract with Soules.
The trial was nonjury and resulted in this judgment.
Specific performance of the contract between Kress and Soules was decreed and the sum required to be paid by Soules established. A money judgment against Kress and Willie Rouse, Sr. was awarded Soules for $100 per month from August 1 until delivery of possession of the property as reasonable rental therefor.
Exemplary damages in the sum of $750 was awarded Soules against N. C. Kress and Willie Rouse, Sr.
Willie Rouse, Sr., was adjudged to have no interest in the property and the interest therein of Martens was declared subordinate and inferior to the rights of Soules.
The $13,000 mortgage held by the Southern Trust and Mortgage Company was decreed to be a valid first lien on the property.
Actual damages of $6,247.50 and exemplary damages of $1,500 was awarded Martens against N. C. Kress and Willie Rouse, Sr.
Intervenor Currin was awarded judgment against N. C. Kress for $875.
No findings of fact or conclusions of law were requested or filed.
Appellants Kress and Rouse have filed a joint brief and appellant Martens a separate brief. We will dispose of the points made by Kress and Rouse.
Their first point is that the court erred in granting specific performance. The reasons assigned are numerous, more than four pages of brief are required to state them. We will state the principal reasons and answer all.
The basic reasons assigned are that Rouse owned an interest in the property of which Soules had notice and since he has not conveyed or agreed to convey to Soules that specific performance against Kress alone would be ineffective; also that under the circumstances specific performance would be inequitable as to Martens.
The contract between Kress and Rouse, Sr., did not purport to be a conveyance of realty and there is no evidence before us that it was so intended. The agreement evidences nothing more than a joint adventure of the parties, the interest of Rouse, Sr., being confined to a portion of the profits arising from a sale of the property. Rouse, Sr., had no interest in the land. Jowell v. Carnine, Tex.Civ.App., 32 S.W.2d 511 (El Paso, C.C.A., writ ref.), Martin v. Morrison, Tex.Civ.App., 260 S.W. 893 (El Paso, C.C.A., writ dism. w. o. j.), Snover v. Jones, Tex.Civ.App., 172 S.W. 1122 (El. Paso, C.C.A.).
This holding eliminates all questions as to the notice which Soules may or may not have received concerning the interest or title of Rouse, Sr.
We should say here, however, that the evidence is sufficient to sustain an implied finding that Currin, the realtor, was the agent of Kress. Kress testified that he listed the property for sale with her and he also signed the Soules' contract which recited that Kathryn Currin was the agent of Kress.
The inequities of the case as to Martens are predicated on the assumption that he was an innocent purchaser. Martens was not an innocent purchaser. He purchased pendente lite. His contract with Rouse, Jr. was of no consequence because Rouse, Jr. had no title.
The contention of Kress and Rouse that the judgment herein will require long supervision, to which equity is opposed, is overruled as being without factual basis.
Their objection that the judgment does not require Soules to perform his part of the contract is contrary to the terms of the judgment and the objection that time. for such performance is not fixed is correct. A reasonable time will be read into the judgment and any controversy concerning the same will be determined by the trial court.
These appellants also suggest that the court was powerless to act on the property because the wife of Martens was not a party to the suit, the property being her homestead. There is no merit in this. Purchasers pendente lite need not be made parties in order to be bound by the judgment. 28 Tex.Jur. p. 341.
We have considered other contentions made under this point such as that the contract between Soules and Kress did not sufficiently describe the property and that Soules has not tendered performance on his part and they are overruled.
The description is adequate. Short of a metes and bounds description the one given in the contract is as full and complete as it could be.
Soules alleged that he had notified Kress '* * * that he had secured such a mortgage and was prepared to close the contract and consummate the sale, and demanded execution of the deed. * * *' His testimony was of similar import. Under the circumstances of this case we hold that such...
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