Riley v. Brown, 472
| Decision Date | 19 March 1970 |
| Docket Number | No. 472,472 |
| Citation | 452 S.W.2d 548 |
| Parties | Roy B. RILEY et al., Appellants, v. Jane Holcomb BROWN et vir, Appellees. |
| Court | Texas Court of Appeals |
Sallas, Griffith & Meriwether, Joe E. Griffith, Crockett, for appellants.
John B. McDonald and A. D. Henderson, Palestine, for appellees.
This is an appeal from a summary judgment.
Appellee Jane Holcomb Brown and appellant W. H. Holcomb, Jr., were married in 1948. Appellant Holcomb in 1959 entered into a contract of sale and purchase with the Veterans' Land Board of Texas for 173.28 acres of land in Houston County, Texas. In 1965, appellee and appellant Holcomb were divorced. In the previous divorce judgment, the trial court found the 173.28 acres of land was community property, and awarded an undivided one-half (1/2) interest in some to each party. Appellant Holcomb continued to make payments to the Veterans' Land Board until June, 1966, when he, by an 'Assignment of Contract of Verterans' Land Board Contract of Sale and Purchase,' assigned to appellant Riley his interest in the land with this language:
'* * * does hereby assign, transfer and convey unto the said Assignee the above referenced Contract of Sale and Purchase and all of the right, title and interest of the said Assignor in and to the tract of land * * *.'
Appellant Riley did not pay any money to appellant Holcomb for the assignment, and Holcomb executed the assignment because he could no longer make the payments and wanted to preserve his credit rating so as to not lose his job.
Appellant Holcomb was in the military service of the United States before he was married to appellee.
Appellee Jane Holcomb Brown joined by her husband, A. B. Brown, filed this suit against appellants, Roy B. Riley and W. H. Holcomb, R., and the Veterans' Land Board of Texas, which agency was the holder of the legal title to the land involved here. Appellee alleged she was the owner of a one-half interest in the equitable title to the land, that the assignment to Riley was without consideration, and that Riley was not a bona fide nor innocent purchaser. Appellee asked for sale of the land as under execution alleging she was entitled to partition and the land could not be partitioned in kind; that after such sale under execution, the indebtedness to the Veterans' Land Board be paid and the proceeds remaining be divided one-half to appellee and one-half to appellant Riley. Appellee had alternative pleas for (1) appointment of a receiver to sell the land; (2) cancellation and recision of assignment to Riley as being null and void; and (3) damages against appellant W. H. Holcomb, Jr.
Appellants' pleading alleged that the rights, privileges and benefits that appellant Holcomb secured were granted by Article III, Section 49--b of the Constitution of Texas, Vernon's Ann.St., to a veteran as his separate property, and that under the provisions of the Constitution and Article 5421m, V.A.T.S., the land in question was the separate property of appellant Holcomb.
Appellee filed her motion for summary judgment alleging that there was no genuine material issue of fact; that appellants' claim that land was separate property of appellant Holcomb was a collateral attack upon the divorce judgment; and that as a matter of law, appellant Riley fails to qualify as a bona fide purchaser without notice for valuable consideration. Appellee's affidavit was attached to her motion setting out the facts of her marriage and divorce and that she had never sold or assigned or conveyed her interest in the land.
Each appellant filed his affidavit in opposition to appellees' motion for summary judgment stating that they never discussed any claim or demand appellee might make against the property or any interest she might have, and appellant Riley additionally stated he assumed the obligation under the contract in good faith and had performed the obligations thereunder.
The trial court granted appellees' motion for summary judgment and appellants appeal on two points.
Appellees filed a motion to dismiss the appeal on the ground this court does not have jurisdiction because the trial court's judgment does not dispose of all the issues as to all the parties. Appellees' pleading asked for damages against appellant W. H. Holcomb, Jr., as an alternative plea. The court granted appellee's motion for summary judgment on her primary ground alleged for recovery, one of the grounds asked for in her motion, and her alternative plea for damages never became an issue before the court and is therefore not a pending issue undisposed of. The court's judgment denied all relief not expressly granted. There were no issues or parties which were not disposed of by the court; therefore, the motion to dismiss is overruled.
Appellants' first point is that summary judgment was improperly granted because a material fact existed whether appellant Riley might have been a bona fide purchaser of the property involved here. Rule 166--A, T.R.C.P., provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. The evidence must be viewed in the light most favorable to the party opposing the motion. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup., 1965), and cases cited.
Appellant Riley's affidavit says he assumed his obligation under the contract in good faith and had performed the obligations thereunder. We must examine the instrument by which appellant Riley became assignee of the contract appellant Holcomb had executed with the Veterans' Land Board to determine whether Riley, as a matter of law, could be a bona fide purchaser. As pointed out above, the assignment to Riley by Holcomb had the language:
'* * * does hereby assign, transfer and convey unto the said Assignee the above referenced Contract of Sale and Purchase...
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