Wingart v. Baxter

This concededly correct general statement is copied from the briefs of the parties:

"This is a suit by T. J. Baxter and wife, Mary Baxter, plaintiffs, against W. H. Wingart, defendant, seeking to recover $1,000.00 as separate property of plaintiff, Mary Baxter, upon a parole agreement, whereby, according to plaintiffs' amended petition, defendant was to pay her that sum `if she would make no further claim in and under' a certain unexpired lease on real estate, `and with her husband turn over to him their possession thereunder' of the leased premises O a certain `residence, store building and pasture or trap.' Plaintiffs claimed to own as their homestead, such unexpired term, which ran from March 22, 1927, to May 8, 1929, a little more than two years.

"Plaintiffs allege a tender of, and do tender a written transfer, signed by themselves, dated and acknowledged March 7, 1929, (the same date as the Amended Petition) where in they purport to `sell, transfer and assign to W. H. Wingart of the County of Jackson, State of Texas, all the claims, rights, titles and interests which we (T. J. Baxter and wife, Mary Baxter) on the 22nd day of March, 1927, or at any time thereafter had of, in, to or under a certain written lease agreement executed by Bettie C. Ward, individually,' etc., making in connection therewith this statement:

"`Plaintiffs state that while they did not obligate themselves to agree to execute in favor of the said W. H. Wingart an assignment or transfer of their rights under their aforesaid lease in writing, nevertheless they have been ready, able and willing at any time if called upon by defendant to execute and deliver to him such an assignment in writing thereof, and they here now tender to him herewith a duly executed written assignment of their rights under said lease as such rights existed at the time of the aforesaid sale by the assignee.'

"The $1,000.00 was to be paid in cash, and interest is asked for at 6% from March 22, 1927. Though it does not appear from the petition itself, the $1,000.00 was in fact claimed as a premium on the lease, as $50.00 per month rental called for in the lease had to be paid to the owners and all the other obligations thereof had to be taken care of by the defendant.

"The defendant filed a general demurrer to plaintiffs' petition, also a special demurrer on the ground that plaintiffs' suit is brought upon a parol contract made in violation of the Statute of Frauds. Defendant also denied the truth of plaintiffs' allegations and set up as defense the Statute of Frauds, and by way of cross-action against the plaintiff, T. J. Baxter, set out that said Baxter was indebted to him upon a surety debt for $1,425.56 and interest and costs of suit, and upon an open account and upon three checks, such debts as a whole aggregating $2,227.35.

"Plaintiffs, by supplemental petition, demurred to defendant's answer on three grounds.

"I. That defendant had occupied and used the premises and was now estopped to deny his liability to pay Mrs. Baxter the $1000.00.

"II. That this suit is to recover a debt due Mrs. Baxter as her separate property, and that defendant's cross-action against T. J. Baxter was therefore not maintainable.

"III. This is in substance the same as II.

"Plaintiffs also made a general denial and set up the Statute of limitation to defendant's cross-action.

"The court, trying the cause without a jury, overruled the general demurrer and special exceptions of defendant, sustained exceptions II and III of plaintiffs, and on the evidence, rendered judgment for the plaintiff, Mrs. Mary Baxter, for $1000.00 as her separate property, with interest thereon from January 1, 1928, at 6% per annum. The defendant excepted, and gave notice of appeal."

The appellees' motion to strike out appellant's assignments and dismiss his appeal, on the ground that he neither by request procured the filing of findings of fact and law nor filed a motion for new trial below, taken for consideration with the case, comes too late, having been filed more than thirty days subsequent to the filing of the transcript here. Rule 8 for Courts of Civil Appeals. If it had come in time, however, it could not have been sustained; Craver v. Greer, 107 Tex. 356, 179 S.W. 862.

Their objections, however, to the consideration of his propositions Nos. II, VII, IX, and X, are sustained, these being that:

"Number II is not germane to assignment I on which it is based, in that it presents the tendered written transfer of the lease of March 7, 1929, as being ineffective because self-serving and insufficient to take the sued-upon contract out of the statute of frauds, whereas the assignment merely asserts that the contract declared upon is violative of the statute of frauds because not in writing. Rule 30 for the Courts of Civil Appeals.

"Number VII, generally alleging that a parol contract violative of the statute of frauds should not be enforced, if at all, except upon full, clear, and satisfactory proof, gets nowhere, because a mere abstraction — Rule 30, supra; Wright v. Maddox (Tex.Civ.App.) 286 S.W. 607.

"Numbers IX and X are based on assignment V, which was not filed below and is submitted here as involving fundamental error, but does not do so, since it merely alleges a variance between the pleadings and the proof that requires the appellate court to search the statement of facts to decide the question the assignment propounds — Swinson v. Thomas (Tex.Civ.App.) 16 S.W.2d 412; Waid v. Mills (Tex.Civ.App.) 8 S.W.2d 522; Brotherhood v Edmonds (Tex.Civ.App.) 10 S.W.2d 1011."

Appellant's propositions I, III, IV, V, VI, and VIII alone remain for consideration on the merits.

Nos. I, III, and IV in the aggregate affirm: (1) That his special demurrer to the appellees' petition invoking so much of our statute of frauds as interdicts any action upon a lease of real estate for longer than one year that is not based upon a promise or agreement in writing, should have been sustained; (2) that, as against such plea on his part, his mere possession, use, and occupancy of the premises from and after the date of the alleged agreement did not entitle appellees to recover as on a parol contract of sale for cash of the lease, their remedy being a suit for the reasonable value of such use and occupancy; (3) that parol testimony was inadmissible "to prove up a contract of sale of a lease on real estate for an unexpired term of more than two years, over defendant's plea setting up as a defense the statute of frauds," etc.

No. V, in substance, is: Appellees having relied upon a parol contract of sale for cash of a lease on real estate for an unexpired term of over two years, which was in violation of the statute of frauds, acts of appellant that were either just as consistent with the existence of no lease contract at all, or with one in keeping with that statute as violative of it, as they were with one in suit, could not be regarded as constituting part performance of the contract so declared upon, especially when they occurred after he had repudiated it.

No. VI simply asserts that the evidence was insufficient to support a finding that such a contract as was sued upon was made.

No. VIII declares that appellees were estopped to compel appellant to perform the agreement recovered upon, which was not binding on either of them because both violative of the statute of frauds and a contract to convey a homestead interest, by their failure to move for its performance not only until after they, or at least the husband, had as owners of the lease in writing demanded the rents from the premises of himself and his subtenants thereon, but also until after the husband, with the wife's ratification, had made a second agreement transferring the lease to appellant subsequent to the latter's repudiation to the husband of any obligation to the wife under the first agreement, upon which the court gave them judgment.

None of these presentments, we conclude, should be sustained. They seem to us to reflect, ab initio, a misconstruction of the case made in the circumstances by the pleadings and proof of the appellees. Mrs. Baxter was the plaintiff in interest; Mr. Baxter joining in the suit as a matter of form only for the prosecution of her declared upon separate claim. They were husband and wife, having a young child, and as a family so constituted lived together at all times material here. Prior to May 12, 1924, Mr. Baxter had been employed in the mercantile business at the town of La Ward, Tex., by the firm of L. Ward Son, and was then living there with his family in the firm's dwelling house located near by its store building. On that date he and appellant, by joint contribution, bought the Ward stock of merchandise, furniture, and fixtures located in the store building, and also, under the name of "Wingart Baxter, a partnership composed of W. H. Wingart and T. J. Baxter, as lessees, by virtue of the written contract, the 3-year renewal term of which gave rise to this suit, leased as an entirety at an agreed rental of $50.00 per month from Mrs. Bettie C. Ward, Executrix, etc., et al., as lessors for two years from May 8, 1924, with optional tenure to lessees of three additional years at the same price and terms, the Ward Son three pieces of property, which are thus described in the lease referred to:

"1. All of the store building and lot or enclosure situated at La Ward in Jackson County, Texas, now and heretofore occupied by La Ward Mercantile Company as place of business, together with all and singular the other buildings situated on said lot and within the store enclosure;

"2. The dwelling-house and lot now occupied by said T. J. Baxter, with his family, situated at La Ward in Jackson County, Texas; and

"3. The small trap pasture located at La Ward, Texas, lying between said store building and its fence enclosure and said dwelling house and its fenced lot or enclosure."

This partnership purchase of both the stock of goods and the leasehold on the three properties was merely nominal, however, as Baxter alone went into immediate possession of the whole, leaving his family occupying the residence as their homestead, and not only from the beginning individually operated the merchandising business as his own — having shortly after such joint purchase of it reimbursed appellant for the part he had paid in — but likewise also paid the Ward estate all rentals that accrued under the lease; appellant in fact having no interest in, nor possession of, nor paying anything else toward either the business or the leasehold, although he was never formally released from liability under the contract made to the two jointly. These conditions persisted unchanged until the original two-year term of the lease expired, whereupon Baxter alone exercised and performed the terms of the option it gave for a three-year renewal, and thereby perpetuated them on as before for slightly less than one year more, or up until the time of the alleged agreement between Mrs. Baxter and appellant, herein sued upon.

The facts thus stated are established by and found from the undisputed evidence. It is likewise further shown that Mr. Baxter, having in the meantime become embarrassed in business, and at a time when, with the knowledge of appellant, he was occupying the store building as a place for exercising his calling as the head of his family, and, with his wife and daughter, the dwelling house as their homestead, both parcels being part of one general property under the lease and separated only by a small open town lot, called a trap pasture, on the 9th day of March, 1927, made an assignment, as under the Texas statute, for the benefit of his creditors, of "all his real and personal estate, other than that which is by law exempt from execution"; on March 12, 1927, his named assignee issued written notice to his creditors, among whom were his wife and this appellant, advising that ten days later he would sell to the highest bidder for cash all property which passed into his hands by Baxter's deed of assignment to himself of March 9th, including, among other things, the stock of general merchandise in the store, together with the furniture and fixtures therein, and open accounts receivable, all of the aggregate inventoried value of $8,538.46, of which total the merchandise amounted to $5,159.62, the furniture $1,575, the accounts $1,803.84, also "certain leases on real estate are included in the property to be sold and all such rights and title to these leases as passed to me by virtue of the Deed of Assignment aforesaid"; the sale as so advertised took place on March 22, 1927, and appellant became the purchaser of the stock of merchandise along with such title to the lease on the store building as the assignee held, and the accounts, for a total of $2,400, according to this report made next day by the assignee to Baxter's creditors: "Mr. W. H. Wingart of Francitas, Texas, bid in the stock of goods and whatever rights I, as Assignee, had in the lease on the building, for $2,300.00. He also became the purchaser of the accounts owing to Mr. Baxter at the price of $100.00."

Neither of the Baxters made any protest, or asserted any conflicting right at this sale, and appellant, with their knowledge and acquiescence, from and after its date both took possession of the store with its contents and paid all the $50 monthly rentals to the Ward estate on the lease involved, not getting possession of the dwelling house, however, until the Baxters moved out of it on May 5th following, they claiming to have held the residence over until that date and to have made no objection to the assignee's sale, or to delivery of the property under it, as in compliance with the agreement Mrs. Baxter declared upon herein. Since so acquiring possession of the whole property, however, appellant continuously thereafter used and occupied the same, enjoying all revenues therefrom and paying all charges against it.

Athwart the course of the uncontroverted facts thus appearing came Mrs. Baxter's averments of a cause of action and the evidence adduced in support of them. She pleaded, as the quoted and very succinct opening statement has it, that appellant, upon a parol agreement made between the two after the assignee's notice of the intended sale of her husband's assets had been issued and before the sale pursuant thereto, agreed with her that, "knowing full well that the plaintiff, Mrs. Mary Baxter, was claiming a valuable homestead right and property right in and under said lease, * * * proposed to the said Mrs. Mary Baxter that in case he became the purchaser of the Baxter stock of merchandise, he would give her One Thousand ($1,000) Dollars as her own separate property if she would make no further claim in and under said lease, and with her husband turn over to him their possession thereunder of said residence and store building and pasture or trap, and she thereupon, a few days before said sale by the assignee was to be made, the exact date of which she does not now remember, with the consent of her husband to the terms thereof, accepted the offer and proposition." She also charged, after setting up the facts hereinbefore appearing as to her husband's assignment, the procedure consequent thereupon, his family relations during all such times, and the nature, tenure under, and duration of the lease from the Ward estate on the properties, that appellant did buy the stock of merchandise, whereupon she and her husband complied in all respects with her verbal agreement, making no further claim under the lease and delivering up to him their possession of the residence, the store building, and the trap pasture, and further: "He and his said wife, the plaintiff, Mrs. Mary Baxter, were claiming the aforesaid residence and store building * * * and said trap pasture, as and for their homestead, and were occupying same as such, and they now say that said premises were at such time their homestead and as such exempt to them from forced sale as against their creditors, and that at such time they had and held a written lease thereon from the owners thereof for a definite term of years, * * * which lease by its terms would not expire until the 8th day of May, 1929, upon the terms of such lease being complied with by plaintiffs; that by virtue of the premises and the facts hereinbefore and hereinafter alleged, such leasehold and leasehold interest in said premises and improvements did not pass to the assignee of the said T. J. Baxter under or by virtue of the terms of the assignment so made by the said T. J. Baxter."

When the evidence is looked to, there can be no doubt of its sufficiency to support the learned trial court's finding that the agreement was made substantially as alleged. It is true there was a direct clash about the matter between the parties; both appellees testifying that the determining interview occurred at their home, the dwelling house referred to in the lease in the interim between the assignee's advance notice of and the subsequent sale of Baxter's property, in which they were corroborated as to material particulars by a servant, while the appellant, although admitting his presence there at the time, as emphatically denied that any such thing took place at all. It was the exclusive province of the trial judge in such circumstances to resolve the conflict; his action in doing so being binding upon this court. National Grand Lodge, Loyal Friends of America Benevolent 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 Ins. Co. (Tex.Civ.App.) 260 S.W. 688; Moore v. Porter (Tex.Civ.App.) 281 S.W. 232; Austin v. Nieman (Tex.Civ.App.) 3 S.W.2d 128.

Under all the facts so required to be regarded as established, we think it must be held that:

(1) The whole property being within the town, or urban, Mrs. Baxter had a valuable and individual homestead right for the unexpired term of the lease in both the store building where her husband was exercising his calling as the head of their household, and the dwelling house where his family was actually residing, which, with her husband's consent and co-operation, she could relinquish in the manner here shown for a consideration that in turn became her separate property. Speer's Law of Marital Rights in Texas (3rd. Ed.) c. 22, pars. 453459, inclusive, and 468, together with authorities cited in footnotes.

In the scholarly work cited, Judge Speer thus in part, in paragraphs 457 and 459, supra, states the principles of law here applicable:

"The wife's homestead right is a peculiar right. It is, of course, usually in property a part of the realty. She may own the fee, or she may have no title whatever therein. Her rights arise immediately when the property shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family; in other words, as it is more frequently expressed, immediately upon the dedication of the property for homestead purposes. * * * This peculiar right continues so long as the property is occupied by the family as a home, and in some instances even longer. It cannot be assigned nor sold, nor will it descend. Yet she enjoys a very distinct, personal, individual right, which, if not property itself, may be relinquished for a consideration which in turn becomes her separate property; Blum v. Light, 81 Tex. 414, 16 S.W. 1090; Drake v. Davidson, 28 Tex. Civ. App. 184,66 S.W. 889; Jones v. Jones (Tex.Civ.App.) 146 S.W. 265; Howard v. Mayher, 39 Tex. Civ. App. 529, 88 S.W. 409.

"The business homestead is a part of the one homestead exempted by law, and its combined value with the residence home must not exceed the constitutional limit. If rural, the 200 acres permitted are supposed to constitute the business homestead as well as the residence, since the calling or business of those who live in the country is usually farming or a kindred vocation, while the vocation of those who live in our towns and cities varies. `Therefore, if the head of a family be a merchant, in addition to his home, his storehouse is exempt; if a lawyer or doctor, his office; if a farmer, his farm; if a gardener, his garden, etc. — the only limitation as to quantity, in case of urban property, being one of value."'

(2) The statute of frauds had no application to her agreement of relinquishment as so alleged and proved; it having been carried out on the part of herself and husband by delivering the premises to and thereafter making no claim on account thereof against appellant, which possession he accepted and subsequently made exclusive use of for his own benefit, hence became bound for the stipulated consideration, in any event being charged upon the equities resulting from the acts thus done in the execution of the contract, if not upon the contract itself. Southern Building Loan Ass'n v. Jackson (Tex.Civ.App.) 290 S.W. 266; Belcher v. Schmidt, 62 Tex. Civ. App. 411, 132 S.W. 833; Showalter v. McDonnell, 83 Tex. 158, 18 S.W. 491; Adkins v. Watson, 12 Tex. 199; Fulton v. Robinson, 55 Tex. 401; Sprague el al. v. Haines, 68 Tex. 215,4 S.W. 371 (note under case); Texas Company v. Burkett, 117 Tex. 16,296 S.W. 273, 54 A.L.R. 1397; Morris v. Gaines, 82 Tex. 255, 17 S.W. 538; Ponce v. McWhorter, 50 Tex. 562; 27 C.J. p. 342, § 427; Lodge v. Leverton, 42 Tex. 18; 3 Pomeroy, Equity Jurisprudence (3 vol. Ed.) p. 457, § 1409; 4 Pomeroy, Equity Jurisprudence (4th Ed. 1918 — 19) § 3346.

The rule the courts apply to such situations is thus expressed in these excerpts from the opinions in Association v. Jackson and Belcher v. Schmidt, respectively:

"Rev.St. 1925 art. 3995, subd. 4, does not apply where one party to an oral agreement obnoxious thereto has fully performed his obligations and the other has received and is enjoying benefits of such performance."

"Accepting the allegations in the petition as true, plaintiff had transferred the lease to the defendant, delivered possession of the land, and had rendered all the services which he had agreed to perform. Defendant had accepted the lease, had gone into possession of the land, and had used it. If, in any event, it could be said that the agreement when first made came within the purview of our statute of frauds (Sayles' Ann.Civ.St., art. 2543), that statute had no application after plaintiff had fully performed the obligations imposed upon him by the terms of the contract and defendant had accepted the benefits of such performance."

(3) Parol testimony was properly admitted to prove up such an alleged agreement; the statute of frauds not standing in the way. Lechenger v. Merchants' National Bank of Houston (Tex.Civ.App.) 96 S.W. 638; Jones on Evidence (Horwitz Ed. 1913) vol. 3, pp. 141, 142.

As affects the issues raised, we regard as immaterial the fact that the trustee under the assignment inventoried the lease on the store building and residence as personal property of T. J. Baxter of the value of $500, and that the latter swore to it as being just, true, and correct. Baxter explains that by saying that he meant his individual interest in it, not that of his wife, which had been distinct and separate all the time. Whatever he meant or intended, that was, in our opinion, the legal status as to her interest in the circumstances, which alone is what this suit is concerned with.

Appellant's alleged contravening equities do not seem to make, at the most, a controlling appeal, since it undisputedly appears, mainly from his own testimony, that he took over from the assignee's sale for the $2,400 he paid tangible assets of the inventoried value of $6,963.46 besides the lease itself, and then subrented parts of the premises received for well-nigh if not quite enough to pay the $50 per month rentals he thereafter owed the Ward estate for the balance of the unexpired term of the lease.

Further discussion is deemed unnecessary, since these conclusions determine the merits of the appeal.

The judgment of the trial court has been affirmed, with Chief Justice PLEASANTS dissenting.

Affirmed.