De Cordova v. Smith's Adm'x.

• Decision Date: 01 January 1852
• Citation: 9 Tex. 129
• Parties: DE CORDOVA, ADM'R v. SMITH'S ADM'X.
• Court: Texas Supreme Court

9 Tex. 129

DE CORDOVA, ADM'R

v.SMITH'S ADM'X.

Supreme Court of Texas.

1852.

A court of equity will never decree performance where the remedy is not mutual or one party only is bound by the agreement. But, Quere? As to the application of this rule

It is an acknowledged rule of equity jurisprudence that a party entitled to a specific conveyance of property, personal or real, will not be permitted to hold back from an assertion of his rights, and speculate upon the chances of such changes as may decide whether it would be to his interest to have the conveyance made; but he is required to be vigilant and prompt in the assertion of those rights; and if changes have occurred during the lapse of time in the value of the property to be conveyed, or in the consideration to be paid, a court of equity will always refuse its aid and leave the party to seek redress, where the law had left him, by a suit for the breach of the covenant.

Lapse of time will create a presumption that the parties have waived or settled their rights, and stale claims, when brought into a Court of Chancery, are received without favor and entitled to but little consideration, unless attended with circumstances that will repel such presumption. (Note 32.)

Where there is no express limitation to the remedy, as for a specific performance of an executory contract for the sale of land, the better authority seems to be that a point of time should be assumed analogous to the law of limitations of the forum. But, Quere? As to the application of this rule in practice.

If a party applies for relief in equity after being guilty of gross laches, or after a long lapse of time unexplained by equitable circumstance, his bill will be dismissed, except where a part has been performed or paid, in which cases the defendant will be decreed to refund, to make compensation, or to a specific performance.

Taking out a patent in his own name by a trustee, when not contemplated by the trust, manifests an intention to claim and enjoy the land as his own; and lapse of time from that date, unexplained by equitable circumstance, imputes laches to the cestui que trust, and after a time (not yet definitely settled) bars the equity. (Note 33.)

Circumstances which, after the lapse of ten years or thereabouts, justified the presumption of a mutual abandonment of an executory contract relating to lands. (Note 34.)

This was an action, commenced in January, 1848, upon a covenant, in the following words:

+---------------------+
                ¦REPUBLIC OF TEXAS, ¦)¦
                +-------------------+-¦
                ¦County of Bexar.   ¦)¦
                +---------------------+
                

This agreement, made and entered into this the second day of April, 1838, between J. W. Smith on the one part and Joseph Baker on the other part, witnesseth, that whereas the said Joseph Baker selected and improved a tract of land lying on the Salado creek where the Gonzales road crosses said creek; and whereas the said tract of land has been located by a certificate in the name of said Smith, as assignee of ______: now it is agreed on the part of said Smith, and he hereby obligates himself to perform the same, that as soon as a survey of said tract is made he is to convey to the said Baker all the interest thereby acquired by said location, it having been hitherto understood and agreed upon between the parties that the location is made for the benefit of said Baker. It is further understood and agreed on between the parties that whereas the said John W. Smith has, in his own name, a transfer of a headright claim for one league and labor of land, being the headright of Casimero de la Garza, which is really the property of said Baker, and on which a certificate has not yet been granted: now if the said claim should pass the Board of Land Commissioners, then the said Smith is to receive it in exchange for the one located on the said tract of land, for which he is in that case to make a lawful conveyance to said Baker; but in case it should not pass the Board of Land Commissioners, he is to lift said claim now located there and locate in the same place two-thirds of a league certificate belonging to said Baker which are left with said Smith.

Done in San Antonio on the above date and signed,

JOHN W. SMITH, [SEAL.]

+--------------------------------+
                ¦            ¦(¦JOHN S. SIMPSON, ¦
                +------------+-+-----------------¦
                ¦Witnesses:  ¦(¦                 ¦
                +------------+-+-----------------¦
                ¦            ¦(¦JOHN MCCREARY.   ¦
                +--------------------------------+
                

The plaintiff averred that prior to the second day of April, 1838, Baker had selected and improved the land in question, and that in consequence he was entitled to a preference right to the land under the constitution and laws of the Republic; that John W. Smith located said tract of land by virtue of a league certificate issued in the name of Maria Gertrudes de Alenez, and afterwards obtained the patent for the same; that in making said location Smith was acting as agent and in trust for Baker; and that the writing was entered into to evidence that trust, and he so held the property in trust until his death in 1845; that M. J. Smith became the administrator of J. W. Smith, and finding among the assets of Smith the patent, she caused the said tract of land to be inventoried as Smith's property, and under an order of the Probate Court, on the first Tuesday in September, 1847, sold the said property at public auction for $5,400--one-fourth cash, and the balance secured by notes and mortgages of Meads and the other purchasers.

The petition also averred that the representatives of Baker, not being prepared to take the necessary steps in regard to their rights, that Augustus Fisher, acting for Baker's estate, and D. C. Vanderlip, acting for Smith's estate, entered into the following covenant:

+---------------------+
                ¦STATE OF TEXAS,    ¦)¦
                +-------------------+-¦
                ¦County of Bexar.   ¦)¦
                +---------------------+
                

Whereas the heirs of Joseph Baker, deceased, have preferred a claim against the estate of John W. Smith for one league of land situated on the Salado below the Gonzales road, patented to John W. Smith as assignee of Maria Gertrudes de Alenez; and whereas said land has been advertised for sale by order of the Probate Court of Bexar county, and to prevent an injury to the sale by the conflicting claims, it is hereby agreed between the counsel of said parties that said sale shall proceed according to said order; that if hereafter the heirs of said Joseph Baker shall produce evidence of an equitable title to said land, and establish the same in a court of justice, the proceeds of said sale, after deducting the necessary expenses of the division and sale of said land, shall be a valid claim against the estate of said John W. Smith, deceased, if the title proved will so warrant it. This agreement shall not be construed into an acknowledgment of any right of the heirs of Joseph Baker to said land, nor shall it deprive the administrator of the estate of John W. Smith, deceased, of any legal defense she might make otherwise to said claim.

D. C. VANDERLIP,

Att'y for estate of J. W. Smith.

AUGUSTUS FISHER,

Att'y for the heirs of Joseph Baker, deceased.

San Antonio, Sep. 6, 1847.

The petition charged that since the death of John W. Smith large debts have been exhibited and established against his estate; that his estate was much involved in litigation, and generally all the circumstances which constitute insolvency; that to be rated as a creditor would subject the plaintiff to interminable delay and loss. Offering, therefore, to pay for the certificate, if it had not been paid for, he prayed for an injunction against the administratrix and the purchasers, in order that the trust fund might be secured until the final hearing.

The injunction was granted, but dissolved upon the coming in of the answers; afterwards it was conditionally renewed, but the defendant, Maria J. Smith, allowed to collect the purchase notes and mortgages, upon giving bond and approved security. So that the controversy was about the fund, the right depending upon Baker's estate establishing an equitable title to the land.

The answer denied the agency of Smith in originally making the location, and treated the contract as a sale negotiated after the location. The answer also treated the contract as containing an obligation or condition precedent on the part of Baker in reference to the certificate of Casimero de la Garza. To resist the specific performance the statute of four years and time generally was relied on.

The plaintiff proved the contract declared on; the location of the league of land in controversy; the field-notes dated 1st June, 1838; the patent to Smith dated 9th June, 1841; notice from S. W. Baker, one of the heirs of Joseph Baker, asserting the right of Baker to the land; the power of attorney from S. W. Baker to Augustus Fisher; the agreement between Vanderlip and Fisher, and an “agreement that Vanderlip had all the power which the administratrix could confer; and that he acted under her immediate direction; and that Fisher had like power;” that Baker improved and settled the league in controversy in 1837, and that it was always called the Baker league; that his house was about the middle of the league; that the account of sales and expenses disclosed in M. J. Smith's answer was correct; that since the dissolution of the injunction she had collected the entire amount.

The defendant proved Smith's application for a certificate for Casimero de la Garza, (the board adjourned the question, but never rejected the certificate;) that a short time after the issue of the patent to Smith Smith conveyed to Baker two tracts of land for one-third of a league each, for which a money consideration was acknowledged; that pending the contestation about Smith's succession Baker visited San Antonio, and Vanderlip mentioned to him that among Smith's papers there was a small note and account, and Baker admitted some indebtedness, but said...