¶1(dissenting).
¶2I respectfully dissent. In Gibson & Johnson v. Ward, 35 S.W.2d 824, (Tex. Civ.App. — Eastland 1931, writ dism.). The rule was stated as follows:
“ . . . when a husband enters into an executory contract for the sale of a homestead, and afterwards tenders to the purchaser a sufficient conveyance joined in by his wife, the husband can compel the purchaser to respond in damages if he fails to take and pay for the land. Milliken v. Townsend (Tex.Com.App. 16 S.W.2d) 259.”
¶3At no time did the seller in the instant case tender to purchaser a deed properly executed and acknowledged by Seller and his wife. Therefore, a legal obstacle to performance by the seller was never removed. The testimony of the seller and his wife at the trial that they were ready, willing and able to execute a proper deed, was not sufficient. Since a valid deed was never tendered, the seller failed to properly show that he was able to perform his contract. Under such circumstances I would hold that the seller is not entitled to liquidated damages.