Bourland v. Huffhines

• Decision Date: 31 December 1924
• Docket Number: (No. 2354.)
• Citation: Bourland v. Huffhines, 269 S.W. 184 (Tex. App. 1924)
• Parties: BOURLAND v. HUFFHINES et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 184

269 S.W. 184

BOURLAND v. HUFFHINES et al.^*

(No. 2354.)

Court of Civil Appeals of Texas. Amarillo.

December 31, 1924.

Rehearing Denied January 28, 1925.

Appeal from District Court, Deaf Smith County; Reese Tatum, Judge.

Suit by C. C. Huffhines against W. S. Bourland and another. Decree for plaintiff, and named defendant appeals. Reversed and rendered in part, and remanded in part.

Turner & Dooley, of Amarillo, and Bonner & Storey, of Vernon, for appellant.

W. H. Russell and Carl Gilliland, both of Hereford, for appellees.

HALL, C. J.

This is a suit by Huffhines against Bourland and the First State Bank & Trust Company of Hereford, as depositary of $1,000 earnest money, to enforce the specific performance of a contract made between Huffhines and Bourland for the sale of certain lands alleged to belong to the plaintiff, and for the recovery against the bank of the $1,000. Bourland defends upon several grounds; mainly, because the title tendered by Huffhines is not in accordance with the terms of the contract. The case is before us practically upon the same pleadings and statement of facts which characterized the controversy upon the former appeal as reported in 244 S. W. 847. For the sake of brevity, reference is made to the statement of the issues as made in that report. Such further statement will be here made as is deemed necessary in disposing of the matters presented upon this appeal. The written contract of sale upon which the plaintiff's action was based bound him to furnish Bourland "an abstract of title showing a merchantable title in himself, clear of all liens, save such as are assumed, and first party (Huffhines) to pay all taxes for 1920, and second party (Bourland) to have said abstracts examined and report any defects in writing, and first party to have a reasonable time to cure such defects." The contract further provides that it is "to be executed by first party executing and delivering a proper warranty deed, at which time second party shall make such cash payment and execute and deliver said notes." The trial court decreed specific performance of the contract. The case is before us upon numerous propositions, which, under the view we take of the record, do not require full and detailed consideration. The principal contention is that the court erred in decreeing specific performance, because Huffhines did not own the entire interest in the land; there being a two-twelfths interest outstanding in the Slaughter estate, and said estate, or the owner of said interest, not being a party to the suit. Huffhines meets this contention by insisting that Bourland, through his attorney, has waived the defect in the title.

This court said, in disposing of the former appeal:

"The jury having found that Roloson was appellant's attorney, authorized to examine the abstracts and pass upon the title, it follows that all defects not pointed out by him were waived."

We are urged by this appeal to review that holding in the light of the record, and it is insisted that this court erred in so holding. To sustain our holding, the cases of Davenport v. Sparkman (Tex. Com. App.) 208 S. W. 658, and Champion v. Taylor (Tex. Civ. App.) 229 S. W. 627, are cited. A review of those cases in the light of the present record convinces us that the appellant's contention should be sustained. The Sparkman Case was not a suit for specific performance, and the waiver there was of the sufficiency of the abstracts under the provisions of the contract of sale, rather than the sufficiency of the title, and the question decided was that of the forfeiture of the earnest money. In the Champion Case there was a prayer for specific performance, and, in the alternative, for the $500 earnest money. The vendor was permitted to recover the earnest money because the vendee refused to consummate the contract. In disposing of the case, Judge Huff quotes from Estes v. Browning, 11 Tex. 237, 60 Am. Dec. 238, to the effect that parties who violate their contracts because they choose to do so, and make their own infractions the basis of an action for money had and received, were urging the adoption of an alarming doctrine, and proceeds as follows:

"There are, of course, certain equitable grounds which present exceptions to the above rule. The parties in this case apparently made time and place the essence of the contract, and appellant having failed to comply by either being at the place and at the time then tendering the money, as we understand, presents no ground in equity to specifically perform as to any part of the land, or to recover the money paid."

In that case the vendee expressly waived that provision of the contract of sale which bound the vendor to make a good and merchantable title, expressing himself as satisfied with the title. It is clearly distinguishable from this case, even as to the right of Bourland to recover the $1,000, by the fact that Bourland is not shown to have personally waived the requirement as to title, and the further fact that Roloson was never authorized by him to make such waiver.

Specific performance is a matter of grace, and will not be decreed when the title is open to reasonable doubt. The remedy cannot be claimed as a matter of absolute right, and will always be denied whenever the circumstances are such as to make it inequitable for a court of chancery to grant the relief. The matter of granting a decree for the specific performance of a contract rests in the sound discretion of the court. This discretion is judicial and must be controlled by established doctrines and settled principles of equity. Such relief will be granted, or withheld, upon a consideration of all the circumstances of the particular case. Under the terms of the contract Bourland is clearly entitled, before being required to perform, to have Huffhines show a merchantable title in himself, save as to the liens which Bourland was under the contract to assume, and it was the duty of Huffhines to convey such title by a proper warranty deed. The agreement on the part of Bourland to accept a proper warranty deed does not bind him to take title which showed an outstanding interest in parties other than those holding liens, and contemplated by the contract. The rule is expressed in 5 Thompson on Real Property, § 4355a, as follows:

"It is the duty of a vendor to tender to his vendee a safe title, and a purchaser is never bound to accept a defective title in the absence of express agreement. A promise to convey such title is always implied in an executory contract for the sale of real estate, and a purchaser is never bound to accept a defective title, unless he expressly stipulates to take such title, knowing its defects. Equity will not compel a purchaser to perform his contract for the purchase of real estate where the title is doubtful. And where there was a failure to furnish title insurance or an abstract showing a clear title, as stipulated in the contract, specific performance will be denied. * * * Where there is any doubt about the validity of the title, or its being free from liens or incumbrances, the court will not decree a specific performance. The title must not be doubtful, its validity resting upon some fact not before the court. The vendor must own the land at the time the suit is brought, or the relief will be usually denied."

The numerous cases cited by the author in support of these principles show that they are practically universal; among them being Burwell v. Sollock (Tex. Civ. App.) 32 S. W. 844, Roos v. Thigpen (Tex. Civ. App.) 140 S. W. 1180, and Clifton v. Charles, 53 Tex. Civ. App. 448, 116 S. W. 120, decided by the courts of this state. In determining the question of the sufficiency of the title, the vendee need not look beyond the abstract furnished him. Adkins v. Gillespie (Tex. Civ. App.) 189 S. W. 275; Blomstrom v. Wells (Tex. Civ. App.) 239 S. W. 227. The courts are practically agreed that specific performance in cases of this character will not be decreed where the vendor cannot show a clear title, but merely one concerning which there is a reasonable doubt, unless the vendee has expressly agreed to accept such title as the vendor may be able to give. If there is any reasonable chance that some third party may raise the question of title against the owner of the estate after the completion of the contract, the vendee will not be compelled to perform, since he will not be required to accept a mere equitable title, or one that will require him to defend his possession in the courts. This is in accordance with the great weight of authority, and is uniformly declared to be the rule in this state. Littlefield v. Tinsley, 26 Tex. 353; Estell v. Cole, 62 Tex. 695; Burwell v. Sollock, supra; Clifton v. Charles, supra; Upton v. Maurice (Tex. Civ. App.) 34 S. W. 642; Webb v. Durrett (Tex. Civ. App.) 136 S. W. 1189; Roos v. Thigpen, supra; Alling v. Vander Stucken (Tex. Civ. App.) 194 S. W. 443; Greer v. Interstate Stockyards Co., 43 Tex. Civ. App. 370, 96 S. W. 79; Giles v. Union Land Co. (Tex. Civ. App.) 196 S. W. 312.

According to the evidence, the jury's finding, and the contention of appellee, Roloson was employed only to examine the abstracts of title and point out the defects, if any. That constituted him a special agent only, and expressly limited his authority, and when he assumed to advise Huffhines as to what would be necessary to make the abstracts comply with the requirements of the contract, he must be held to be acting as the agent of Huffhines rather than for Bourland. Under the express terms of the contract, Huffhines must tender a good and merchantable title. The sufficiency of the title, under such stipulation, is a matter for the court, and not Roloson, to determine. Roloson testified that he had never seen the contract between the parties prior to the time he examined the abstracts. It is not claimed that he was ever expressly authorized or empowered by either Bourland or his...