On Motion for Rehearing. On reconsideration, despite much respect for the opposing views of both appellant's able counsel and its Chief Justice, this court is unable to recede from its former judgment. Three points of material difference appear between their common conclusions and its own that are, in substance, expressed alike in the motion for rehearing and the dissenting opinion, to wit:
(1) "This suit is one to recover the agreed consideration for a parol sale of an interest in land, and the contract sought to be enforced is within our statute of frauds, unless excepted therefrom by reason of such part performance by appellees as would authorize a court of equity, in the prevention of fraud, to refuse to permit appellant to repudiate his contract by pleading the statute."
(2) "There is nothing in the facts of this case to invoke the equitable principle relied on by appellees to relieve the contract sued on from the application of the statute of frauds, which requires all contracts for the sale of an interest in land, or its lease for a longer term than one year, to be in writing."
(3) "Mrs. Baxter's remedy was a suit for the reasonable rental value of the use and occupancy of the premises, instead of for the specific performance of the contract she declared upon, which could be set up only by way of inducement."
The first of these conceptions, it seems to us, fails to soundly appraise the essential nature of the homestead right in Mrs. Baxter that constituted the subject-matter of her claimed agreement with appellant. Having no title to that, it was not an estate in the land that she essayed to sell by parol, as the dissent puts it, but only the bona fide relinquishment for valuable consideration of a distinctly personal individual right to the use and occupancy of the property for such purposes throughout the remainder of the homestead period vouchsafed her by the Constitution and laws of the state for the protection of the exemption accorded her family. Crowder v. Bank, 114 Tex. 34, 261 S.W. 375; Blum v. Light, 81 Tex. 414, 16 S.W. 1090; Jones v. Dewbre (Tex.Civ.App.)13 S.W.2d 233; Speer's Law of Marital Rights in Texas (3d Ed.) par. 457, and cited authorities.
So that, as our Supreme Court states the applicable principle in Blum v. Light, supra, at page 420 of 81 Tex., 16 S.W. 1090, 1092 (italics our own): "It is not a question of conveyance under the statute of frauds, but whether the bill of sale from Brandenberger to Hannah M. Light for the cattle was simulated and colorable, and it was not intended by the parties that the title should pass to Mrs. Light, but merely to enable her to hold the property as the ostensible owner, and in that way secure it to the husband as against his creditors. Baines v. Baker, 60 Tex. 140. * * * If we view the transaction as a gift of the community interest of the husband to his wife it would be good, though voluntary; but, if we view it as it was, — as a conveyance procured by the husband to be made to the separate use of the wife in consideration of her relinquishment of her homestead right, — it was on a valuable consideration and valid."
Irrespective, therefore, of the statute of frauds, and agreeably to the law as announced in cases like Texas Co. v. Burkett, 117 Tex. 16,296 S.W. 273, 54 A.L.R. 1397, we are clear that, under the facts that must here be deemed to have been found below, it must be held that there was such full performance of the alleged agreement by Mrs. Baxter and such part performance by appellant as would have made it amount to the sanction of a legal fraud upon her, had the court permitted him to escape full compliance also by interposing its provisions.
On this phase of the case we are wholly unable to acquiesce in the findings made in the dissent as constituting the uncontroverted facts. While appellant's own testimony so tended, he was contradicted by other evidence as well as by both Mr. and Mrs. Baxter as to all features material here; that is, they both in effect swore that he did not repudiate the declared upon contract with Mrs. Baxter, alleged to have been made before his trustee's sale of her husband's assets on March 22d of 1927, and make another with the husband inconsistent therewith before the appellees had performed their part of the one she thus sued on, but that, on the contrary, neither she nor Mr. Baxter for her ever made any other agreement touching her homestead rights with him, that they fully performed the one she did so make by (pursuant to and in compliance with its terms) first allowing him without protest to take over the store, etc., at the trustee's sale thereof on March 22d of 1927, and then, after remaining in there meanwhile "under him, with his consent, and not claiming the lease against him," by delivering possession of the residence to him on May 5th thereafter, all of which he then likewise accepted and thereafter exclusively *Page 531 used and enjoyed throughout the remaining two years the lease called for, they never having subsequently made any further claim thereto.
Mr. Baxter's deed of assignment to his trustee of March 9, 1927, neither expressly conveyed the leasehold interest in question, nor valued it at $500, and he testified on this trial that he neither intended nor undertook thereby to alienate anything that belonged to his wife, or that was exempt; the deed in general terms merely purporting to convey "all his real and personal estate, other than that which is by law exempt from execution."
Such having been the purport of the testimony and this having been a trial before the court without a jury, in which there was neither a motion for a new trial nor findings of fact and law, and the court having made a general finding in favor of the appellees, to say the least of the resulting situation on appeal, what we have summarized must be deemed in support of the judgment to have been the facts found, notwithstanding conflicts. National Grand Lodge, Loyal Friends of America Benev. Ass'n, v. Wilson (Tex.Civ.App.) 6 S.W.2d 206; Schulte v. Republic Supply Co. (Tex.Civ.App.) 297 S.W. 667; Hines v. Kansas City Life Insurance Co. (Tex.Civ.App.) 260 S.W. 688; Moore v. Porter et al. (Tex.Civ.App.)281 S.W. 232; Austin v. Nieman (Tex.Civ.App.) 3 S.W.2d 128; Boyd v. Keystone Driller Company (Tex.Civ.App.) 6 S.W.2d 221; Sonora Realty Co. v. Fabens Townsite Improvement Co. (Tex.Civ.App.) 13 S.W.2d 965.
The acts thus done — that is, Mrs. Baxter's making no further claim to the premises, and, joined by her husband, delivering possession of them to the appellant, which he accepted — being solely referable to and in direct execution of the contract pleaded, whether or not it was enforceable as such, in our opinion, gave rise to such resulting equities in her favor as charged the appellant thereon. See authorities cited at page 527(2), original opinion.
The case thereby made is more nearly analogous, we think, to the Burkett Case, supra, than to Hooks v. Bridgewater, 111 Tex. 122,229 S.W. 1114, 15 A.L.R. 216, relied upon by appellant and in the dissent, which has three distinguishing features from those obtaining here: (1) There the vendee was seeking specific performance; (2) the contract was one directly for the conveyance of real estate, hence clearly within the statute of frauds; and (3) the vendee had never been given possession of nor made any improvements on the land — whereas in this instance Mrs. Baxter was the grantor or vendor, and gave up in return for appellant's promise of the $1,000 all she had in the property, her valuable homestead right for two years that obviously was not alienated by the trustee's sale of her husband's assets, including instant possession thereof, which appellant accepted, thereby himself doing an act of part performance. After thus causing her position to materially change for the worse, he could not in equity retain both the property and the price he agreed to pay for its use.
The concluding suggestion that a refusal to enforce the contract alleged would not leave the appellees without a remedy, as there was no hindrance to their recovering as on an implied promise the reasonable rental value of the property, ignores the fact that they declared upon an express oral contract to then relinquish its possession, along with all further claim thereto for homestead purposes, wherefore any basis for such an implication was excluded. Carpenter v. U.S., 17 Wall. 489, 21 L. Ed. 680; 39 Cyc. 853; Clark v. U.S., 95 U.S. 539, 24 L. Ed. 518; Anson Contr. (2d Amer. Ed.) p. 365; 27 C.J. p. 362, § 440, note (a); Robb v. San Antonio Street Railway Co., 82 Tex. 392, 18 S.W. 707; Ray v. Young,13 Tex. 550; Raycraft v. Johnston, 41 Tex. Civ. App. 466, 93 S.W. 237; Sprague v. Haines, 68 Tex. 215, 4 S.W. 371.
The motion for rehearing has been overruled.
Overruled.