Browning v. Estes

• Decision Date: 31 December 1848
• Citation: 3 Tex. 462
• Parties: WILLIAM A. BROWNING, Appellant, v. JAMES D. ESTES, Appellee
• Court: Texas Supreme Court

3 Tex. 462

WILLIAM A. BROWNING, Appellant,

v.JAMES D. ESTES, Appellee

Supreme Court of Texas.

December Term, 1848.

Appeal from Washington County.

A vendor may maintain an action for the recovery of land against his vendee who has entered with the assent of the vendor into possession, but who has made default in the payments stipulated in the contract, and which were conditions precedent to the execution of the conveyance to the vendee.

Although the possession of a vendee who enters with the assent of the vendor under a contract be lawful, yet whenever he disaffirms his contract, disavows the title under which he entered, or refuses payment of the purchase money, as stipulated, his possession becomes tortious, and he is liable as trespasser, and subject to be ousted at the suit of the vendor.

The statute of limitations is available as a defense only when the possession is adverse, and not acquired by the assent of the party against whom it is pleaded. Possession of land taken under an executory contract, for the purchase thereof, is in no sense adverse to the person with whom such contract is made. [[[[

But where the purchase money has been paid, and the stipulations imposed on the vendee by the contract have been fulfilled, he may hold adversely to the vendor. [5 Tex. 23;7 Tex. 210;8 Tex. 42;14 Tex. 561.]

The fact that the vendee is able to pay any recovery that may be had against him on the notes is immaterial; it rather aggravates the tortious character of his possession.

This action was brought for the recovery of lands. There were two suits between the same parties, each for separate parcels of land; but as they involved precisely the same questions, they were consolidated; and the judgment rendered for the plaintiff in the court below (the appellate here) embraced the lands in dispute in both cases.

The petition alleges title in the plaintiff, and trespass by the defendant.

In the answer, the limitation of five years and of three years is pleaded. And it was further averred that the plaintiff had, in the year 1839, put Nathan P. Browning into possession, and had, in the year 1841, delivered to the said Nathan his bond, a copy of which is annexed, to make title to the said lands; that the said Nathan remained in possession with the assent of the plaintiff, and made improvements thereon for more than five years previous to his decease, in the year 1845. That the said bond has been returned as part of the estate of the said deceased, and that the defendant, as one of his administrators, hath held possession of the said lands.

It was further averred that the plaintiff had sold the land to the said Nathan, now dead, and executed his deed for the same, a copy of which is annexed. The same instrument is referred to in each of the last pleas, and is a penal bond, the important condition of which is, in substance, that the plaintiff would make to the said Nathan a good and sufficient title, in fee simple, to the land, so soon as the said Browning should make payment of two promissory notes, securing the purchase money; one of which became due on the 25th December, 1840, and the other on the 25th December, 1841.

The facts were found specially by the jury. In them it was stated, in substance, that the plaintiff derived his title from the grantee of the government before the 27th September, 1839; that on that day the plaintiff and N. P. Browning contracted and bargained for the sale of the said land, at which time Browning executed his notes to secure the consideration for the said sales, and, by agreement of the parties, the plaintiff was, at a more convenient time, to execute his bond for title whenever the consideration should be paid; and that in pursuance thereof the said bond was executed. That Browning in his lifetime made various payments, indorsed on said notes, and remained in possession of the lands until his death. That the bond was returned as a part of the estate of the deceased.

That the administrators having refused to allow the balance claimed to be due on the said notes, an action has been brought, and is still pending for its recovery, and a transcript of the record of said suit is made a part of the finding. The estate of Browning is found to be solvent, and able to pay any recovery that may be had upon the said notes. That no other title was ever made to the said Browning, or his administrators, or heirs, since his death. It was admitted that the plaintiff demanded possession of the tracts of land before the commencement of the suit. It appears from the transcript of the suit upon the notes, that the defense set up was the statute of limitations, and that the rate of interest stipulated for in the said notes was usurious.

Upon these facts the jury submitted the law of the case to the court, which the court decided to be in favor of the plaintiff, and gave judgment that he recover the land in controversy. The defendant took an appeal.

WEBB for appellant.

The record shows that the petition in this case was filed on the 22d of October, 1846, and the accompanying transcript, which is made a part of this case by the special verdict, shows that suit was commenced by Estes against the administrators of Browning, for the recovery of the balance of the money claimed to be due on the notes, on the 7th of October, 1846, and that the last mentioned suit was pending at the time the verdict and judgment were rendered in this case. The transcript of the suit on the notes also shows that Browning had paid in part of the consideration for the purchase of the land to Estes, previous to his death, $2,249.88.

That Estes sold the land to Browning in 1839, at which time Browning went into possession under the sale, and retained the possession up to the time of his death in 1845, cannot be controverted. Estes' bond to Browning proves the sale. It is true there was no formal deed made to Browning, but a deed would only have been a higher species of evidence of Browning's right; the right to the land existed without it. Equity would regard it as a sale even without the bond. [2 Story's Eq. p. 98, secs. 790, 791.]

A parol sale of lands in 1839, accompanied by possession, was good; no written title was necessary to secure the rights of the purchaser. [Briscoe vs. Bronaugh, decided at the last term of this court.]

If this had been a suit by Browning's administrator against Estes, to compel him, under his bond, to execute a deed for the land, it is admitted, to entitle him to a decree, he would have had to show a performance of the precedent condition -- the payment of the purchase money; but it is not a suit of that character. It is a suit by the vendor against his vendee to recover lands, which his own bond shows he had previously sold, and without alleging any legal or equitable consideration upon which he can base a right to a recovery. [2 Story's Eq. p. 22, sec. 715; Adams on Eject. 247, 285.]

The special verdict shows that the estate of Browning is solvent and amply sufficient to pay any claim which the appellee may have upon it for the purchase money of the land; the non-payment of the purchase money, therefore, is no ground for the rescission of the contract of sale, even had this been an action for that purpose, and in which it was alleged that the purchase money had not been paid. The appellee's remedy obviously was to bring a suit for the purchase money due upon the notes, which he did. He could not at his own mere pleasure rescind the sale and take back the land, and more especially after he had received a large portion of the purchase money, and was then actually prosecuting a suit for the recovery of the residue of it. [3 Ala. R. N. S. 458.]

Had the estate of Browning been insolvent, and unable to pay for the land, possibly a suit in chancery, praying a rescission of the contract upon that ground, might have been maintained. This, however, would have been a doubtful right. The vendor had a lien upon the land for the payment of the notes, and in a proper proceeding he might have enforced that lien. Beyond this he had no claim to the land after the sale to Browning, and after he had put Browning in possession. [2 Story's Eq. pp. 4, 5, 6, 97, sec. 789; Briscoe vs. Bronaugh, and authorities there cited; 3 Ala. R. 305;1 Ala. R, 273, 622; 4 Ala. N. S. 86.]

If Estes can recover the land in this action, that recovery must decree a rescission of the sale made to Browning, and if the sale be rescinded, what becomes of the money which Browning has paid, and of the notes upon which he is now sued? There is no principle better settled than that even a court of equity will not rescind a contract or sale (not tainted with fraud) unless the parties to it can be restored to their original positions. In this suit it is impossible to restore the parties to their original condition, because the administrator of Browning cannot recover in this action a judgment against Estes for the money already paid, or compel him to restore the notes. [2 Story's Eq. pp. 8, 62, secs. 696, 759; 3 Ala. R. 421.]

Had this been a suit in equity for a rescission of the contract, it is well settled that before the party can claim the benefit of a court of equity, he must himself do equity. Estes, to entitle himself in a court of equity to a rescission of the sale, must not only have alleged that injury would result to him from the inability of Browning's estate to pay for the land, but he must have offered to return the money already received, and to have given up the notes; neither of which has he done. [1 Fonblanque Eq. 142; 2 Story's Eq. p. 16, sec. 707.]

If it be contended that Estes, stricti juris, has a right to recover the land because the legal written title has not been conveyed to Browning, then we say, that if he holds at all, which we do not admit, he holds it in trust for Browning, and may be compelled to convey. A trustee who holds the legal title cannot set up that title against the equitable rights of the ...