Littlefield v. Tinsley

• Citation: 26 Tex. 353
• Parties: W. M. LITTLEFIELD v. J. T. TINSLEY AND ANOTHER.
• Decision Date: 01 January 1862
• Court: Supreme Court of Texas

26 Tex. 353

W. M. LITTLEFIELD

v.J. T. TINSLEY AND ANOTHER.

Supreme Court of Texas.

1862.

As long as a contract for the sale of lands is in fieri, the vendor, to enforce payment of the purchase money, must show, when the vendee relies upon defect of title, that the vendee had purchased at his own risk. In such a case, when the vendor's title is doubtful, a specific performance will not be decreed. [19 Tex. 260;20 Id. 261, 601;27 Id. 565;28 Id. 219.]

The act of May 11, 1846, to organize probate courts, did not in express terms authorize those courts to order a sale of real estate for partition; but the 24th section of that act (Hart. Dig. sec. 1106), directing the distribution of the estate to the parties entitled thereto, did in effect confer such power upon the probate courts, especially when a distribution could not be otherwise made.

But before an order of sale of real estate or slaves could be made for partition under that enactment, it was necessary that notice should be given to the heirs; by personal service if they were residents of the state, or by publication if they were non-residents.

Such notice was essential to the jurisdiction of the probate court to order the sale; and to the validity of the sale itself. [27 Tex. 73;28 Id. 732.]

Where the record of the proceedings of a probate court at its May term, 1848, showed an order of sale of lands for partition to have been granted without such notice, the record was not admissible as evidence of title under the sale; nor was the title bond of the administrator to the purchaser at the sale admissible

When the sale had been properly ordered by the court, the purchaser thereat acquired but a mere equity until the sale was confirmed by the court; and unless the sale was confirmed within a reasonable time, it vested in the purchaser no interest in the land. [4 Tex. 223;26 Tex., 286.]

A vendor, who is bound for the conveyance of a good title to land, cannot insist upon his vendee's acceptance of a deed from him, until he obtains such title in himself; the possession of equities which would enable him to procure a good title by decree will not suffice.

See this case as to the proper judgment to be rendered, when it appears that the vendor of land cannot make title, and the vendee has paid part of the purchase money and made valuable improvements.

APPEAL from Gonzales. Tried below before the Hon. Fielding Jones.

For the main facts of this case, reference is made to the opinion, and to the report upon a former appeal in 22 Tex. 259.

In his answer the appellant, who was defendant below, alleged a payment by him of two hundred dollars upon the land, in part consideration of which the note sued on was given. He further alleged and specified valuable improvements, worth some fourteen hundred and forty dollars, which he had made upon the land. For these sums, as also for the increased value of the land, he prayed judgment against the plaintiff in reconvention.

Parker & Miller, for appellant.

Harwood & Mills, for appellees.

MOORE, J.

It was held in this case, when it was before the court on a former appeal, that the appellant should have been permitted to have sustained his answer by proof; and if he should do this, that he would be entitled to the relief asked by him, unless appellees should prove that the defects of title of which appellant complains were known to him at the time of his purchase, and it was understood that he should take such title as they could give. 22 Tex. 259. And it has been frequently held by this court, “as long as the contract for the sale is in fieri” (as is the case here), “the vendor, to enforce payment, should show, when the vendee relies upon defect of title, that the latter had purchased at his own risk.” Cooper v. Singleton, 19 Tex. 260;Hunt v. McReynolds, 20 Id. 595;Id. 601; Saul v. Bradford, Id. 261. Nor will a court of equity in such case decree a specific performance when the vendee's title is doubtful. Rawle, Cov. Title, 556.

There was no effort on the part of the appellees, in the trial in the court below, to prove that appellant was cognizant of the defects he now charges upon their title at the time he purchased the land, in part consideration of which the note upon which they sue was given. But they insisted, and the court held, that their title was unobjectionable. And unless this is so, the judgment in their favor must necessarily be reversed. The appellees claim to have acquired title through a purchaser at a sale by the administrator of Kimber B. Lockhart, to whose estate the testimony shows the land previously belonged.

The facts in relation to the sale of the land by the administrator of Lockhart, and appellees' purchase of the title of the vendee at the sheriff's sale, appear to be briefly as follows: At the May term of the probate court of Gonzales county, the administrator of said estate filed a petition praying for an order to sell the land belonging to said estate for the purpose of making partition of it among the heirs, it not being otherwise, as was alleged, susceptible of partition. There was no exhibit of the condition of the estate filed by the administrator; nor is it shown of what the estate consisted, beyond the two tracts of land--one of three hundred and twenty, and the other of six hundred and forty acres--for which the order of sale was asked. The petition states that there were six heirs, but it does not give their names or places of residence; though the statement of facts shows that the most, if not all of them, resided in Gonzales county; and no notice was given to them of said application. At the same term at which the petition was filed, the order of sale was granted, directing the sale on a credit of twelve months, and that a return thereof should be made to the court. And on the 4th of July the administrator sold both of said tracts of land to Rollo M. Davis, for the sum of ninety-six dollars, for which he gave his note with security; and the administrator executed to him a bond for title upon the payment of the same. The administrator failed, however, to make a report of the sale to the court, and the same was never confirmed by it. For we think it very evident that the exhibit of the administrator made in 1849, in obedience to the order of the court requiring him to show cause why the administration should not be closed, and in which he states that the lands had been sold, without, however, giving the name of the purchaser or the amount for which they were sold, cannot be tortured, as the appellees insist,...