Cooper v. Singleton

• Decision Date: 01 January 1857
• Citation: 19 Tex. 260
• Parties: CORNELIUS COOPER v. GEORGE W. SINGLETON.
• Court: Texas Supreme Court

19 Tex. 260

CORNELIUS COOPER

v.GEORGE W. SINGLETON.

Supreme Court of Texas.

1857.

The doctrine in Tarpley v. Poage's Adm'r, 2 Tex. 139, is to the effect that though there may be a deed with covenant of general warranty, yet the vendee may resist the payment of the purchase money in cases where the title has turned out to be wholly defective, or there is a valid outstanding title in others, especially where the vendor is or may probably be insolvent, or beyond the reach of the court. The rule in that case is not upon the ground of fraud in the vendor, but of such failure of title as exposes the vendee to the danger, or in fact to the certainty of eviction.

No question was raised in that case (Tarpley v. Poage's Adm'r) as to whether the purchaser had, prior to the sale, knowledge of the defects of the title. But in the subsequent case of Brock v. Southwick, 10 Tex. 65, it was held that where a vendee, under a deed with warranty, accepted the title with knowledge of its defects, he could not resist the payment of the purchase money, unless he had been evicted. [2 Tex. 139;10 Tex. 65;15 Tex. 44;17 Tex. 627;20 Tex. 261, 601;22 Tex. 25, 285;24 Tex. 181;27 Tex. 21, 125, 565;28 Tex. 219.]

The difference between the liabilities of the vendee, under an executory and executed contract, is this: that in the former he should be released by showing defect of title, unless on proof by the vendor that this was known at the sale, and it was understood that such title should be taken as the vendor could give. In the latter, the vendee should establish beyond doubt that the title was a failure, in whole or in part; that there was danger of eviction; and also such circumstances as would prima facie repel the presumption that at the time of the purchase he knew and intended to run the risk of the defect. (The court was considering a deed with general warranty.)

See this case for suggestions as to the mode of proceeding by a vendee, where the vendor is seeking to enforce the payment of the purchase money, and the title is defective, in whole or in part, or doubtful, with a possibility of its becoming good.

In all cases of equitable defenses, the pleader should remember that equity cannot be done by halves, and should, by his allegations, put the court in possession of all the facts necessary to enable it to do complete equity.

If the vendee of the surviving husband, by deed with general warranty, would resist the collection of the purchase money, or any part thereof, on the ground that the land was community property, he should allege ignorance of the state of the title at the time of the sale, and also state such facts as would show that ultimately he would most (probably) not be able to secure the whole of the land.

It is not error to permit a party to withdraw his announcement of readiness for trial, for the purpose of excepting to the pleadings of the other side.

Where the plaintiff was permitted to except to defendant's answer, orally, but to be reduced to writing afterwards and filed, and the exceptions, which went to the whole defense, were sustained, and the exceptions were not written out and filed until many months after the adjournment of the court, to which proceeding the defendant excepted, it was held that it was, at most, an irregularity which was admitted to facilitate the dispatch of business, and for which the judgment could not be reversed.

Appeal from Rusk. Tried below before the Hon. William W. Morris.

The facts are stated in the opinion. The defendant had taken leave to amend, and had filed the amendment twenty-one days before the case was called for trial.

M. Casey, for appellant, cited Perry v. Rice, 10 Tex. 367;Tarpley v. Poage's Adm'r, 2 Id. 147;Wood v. Wheeler, 7 Id. 19;Robinson v. McDonald, 11 Id. 385;Stewart v. Insal, 9 Id. 399; 1 White & Tudor's Lead. Cas. L. & Eq. 271. Mr. Casey also cited Hart. Dig. arts. 669 and 688, to the point that all pleadings and exceptions must be in writing, and argued that if the oral exception could be allowed in such a case, it would be treated as a general demurrer.

Lewis & Flanagan, for appellee.

HEMPHILL, CH. J.

Suit on two notes executed by the appellant, Cooper, payable to William Crisp or bearer.

The defendant pleaded, in substance, that the notes were given in part for the purchase money of a tract of land of one hundred and sixty acres, which is described by its boundaries; that the tract was sold to defendant by William Crisp, the payee in the notes, on the day of their date, viz.: the 26th of September, 1854; that on that day the said Crisp, in consideration of the sum of seven hundred dollars, of which the said notes constituted a part, executed a warranty title deed to defendant for the land; that the tract, before the date of the said deed, had been the common property of the said Crisp and his wife Eliza, both of whom, with their family, resided upon the land for about three years, until, in the year 1854, the wife of the said Crisp died on said land; and that after the death of said Crisp's wife, the land was sold, as above stated, to defendant by the said Crisp. The plea further states that the said Eliza Crisp left several children, who are yet alive; some of them married, some minors, some residing in this state, and others in other states; that there has never been any administration on the estate of Eliza Crisp; that the above named heirs are entitled to one undivided half of said tract of land; that all the purchase money except the notes sued on has been paid to Crisp; that the plaintiff Singleton, if he obtained the notes sued on before they became due, had full notice that they were executed for the consideration above mentioned. By amendment the defendant averred that the notes were not the property of the plaintiff, but of the payee, William Crisp, and that the consideration of the said notes had wholly failed. The plaintiff demurred to the plea.

The demurrer was sustained, and the jury found for the plaintiff.

The important question in the cause is, whether the matter of the plea was a valid defense to the action.

It will be observed that the contract for the purchase of the land was not executory, but executed. The vendee had received his deed, with covenants of warranty. Had the contract been executory, the defense, as stated, might have prima facie been sufficient. The general rule is, that as long as the contract remains executory, the purchaser shall not be compelled to pay the purchase money and take a defective title, except the purchase has been made at his own risk or he has agreed to accept such title as the vendor can give. Brown v. Haff, 5 Paige, 235. Nor will the mere fact that the vendee has gone into and remained in possession amount, in itself, to a waiver of objection to the title. 7 Tex. 244. That the title is defective is a good defense to the vendee, under a contract infieri, and it devolves upon the vendor to show by direct evidence, or by circumstances, that the vendee was purchasing at his own risk, and with a knowledge of the defects of the title, or that he would take such title as the vendor could make.

But when the title has been passed and the deed executed, the purchaser cannot, according to the doctrine in England and in most of the states, resist the payment of the purchase money, on the ground merely of defect or failure in the title. Where there has been no fraudulent representations on the part of the vendor as to the title, the general rule is, that the vendee under a deed must pay the purchase money, and rely upon the covenants in his warranty for redress; and if there be no fraud and no covenants, he is not entitled to any relief. 3 A. K. Marshall, 288, 334;5 Monroe, 239; Lighty v. Shorb, 3 Pa. 447.

But such is not the rule as recognized by the courts of this state. The doctrine in Tarpley v. Poage's Adm'r, 2 Tex, 139, is to the effect that though there may be a deed with covenants of warranty, yet the vendee may resist the payment of the purchase money in cases where the title has turned out to be wholly defective, or there be a valid outstanding title in others; that where there clearly was no title in the vendor, the purchaser is not compelled to pay, and then, after eviction, seek his remedy on the covenants of his deed, especially where the vendor is or may probably be insolvent, or beyond the reach of the court. The rule in that case is not upon the ground of fraud in the vendor, but of such failure of title as exposes the vendee to the danger, or in fact to the certainty of eviction.

No question was raised in that case as to whether the purchaser had, prior to the sale, knowledge of the defects of the title. But in the subsequent case of Brock v. Southwick, 10 Tex. 65, it was held that where a vendee under a deed with warranty accepted the title, with knowledge of its defects, he could not resist the payment of the purchase money unless he had been evicted.

In the case of Tarpley v. Poage's Adm'r, reference was made to cases in South...