Dunlap's Adm'r v. Wright

• Decision Date: 01 January 1854
• Parties: DUNLAP'S ADM'R v. WRIGHT.
• Court: Texas Supreme Court

11 Tex. 597

DUNLAP'S ADM'R

v.WRIGHT.

Supreme Court of Texas.

1854.

It is a familiar principle, that two or more writings, executed cotemporaneously, between the same parties, and in reference to the same subject-matter, must be deemed one instrument and as forming but the same contract.

See this case as to executory contracts, where a mortgage is taken at the same time to secure the payment of the purchase money, and the purchase money is not paid.

Whatever may be the effect of an ordinary mortgage to secure the loan of money, or the rights of the parties thereto, yet where it is to secure the payment of the purchase money, and is executed simultaneously with the conveyance, the vendor has, until the money is paid or the mortgage foreclosed, the superior right to the land; and especially if in possession after the vendee has made default, he cannot be turned out of possession, by process of ejectment or trespass to the title, notwithstanding the claim for the purchase money may be barred by the general law of limitations. (Note 86.)

This is not a suit for specific performance. It is not one in which the plaintiff shows equity, and, if in default, gives some reasonable excuse, and on offering to do equity, calls on the Court to enforce his rights.

Appeal from Victoria. The contest in the Court below turned entirely on the questions whether Mrs. Wright had authority to convey, either in fact, or by operation of law, during the absence of her husband from the country; whether there was an actual rescission of the contract, which involved the question whether Alexander Dunlap purchased for himself, or as trustee for Richard G. Dunlap; and whether the defendants, failing the other defenses, could hold the land by virtue of the statute of limitations. The briefs of counsel, so far as they related to those points, are omitted. The facts, so far as they are material, are stated in the opinion of the Court.

R. Hughes, for appellant. That the claim is stale, the plaintiff has been guilty of laches, and these are evidence of an abandonment of the agreement, was not made a question in the Court below, in any form, as far as we can see from the record. But as this may be insisted upon, in this Court, the attention of counsel will be directed to it. The case of DeCordova v. Smith, 9 Tex. R., 129, may possibly be referred to and relied upon, to maintain all or some of the positions assumed on this subject. The obvious reply to anything which can be said for the appellees, on the subject, is, that the rules laid down in DeCordova v Smith, are only applicable to executory contracts, whether as to trusts or other unexecuted agreements, when attempted to be enforced, by resort to a Court of Equity. And that case was the attempted execution of a trust, the defendant's intestate having obtained a patent in his own name, for a tract of land, which he had agreed to convey to him under whom the plaintiff claimed. And as to this, the Court determined that the demand was stale; those seeking to enforce the trust, had been guilty of laches; and the time which had elapsed, without attempted enforcement of the contract, was evidence of mutual abandonment.

But this can have no application to an action of law, commenced on a legal title to try title to, and recover a tract of land. Nor can there be any application of the rule stated in the case cited, of a time adopted, analogous to the statute of limitation; for the reason that there was, it has been admitted, an adverse holding of the land in contest, from the 1st day of January, 1839; but which could not avail the defendants anything, under the 15th, 16th, and 17th Sections of the Act of 1841, because they could not bring themselves within the rule presented. But notwithstanding all this, there was and is a period which the defendants might have availed themselves of, provided their adverse holding had continued uninterrupted for the requisite period. That period is ten years, and is found in the 14th Section of the Act of 1841. (Hart. Dig., Art. 3390.) The substance of that Section is, that no one shall make entry into lands, tenements, etc., but within ten years next after right of entry accrued; and is, in substance, the same with the Act of 21 James I., Ch. 16, and differing only in the time; the statute of James I. prescribing twenty, and the 14th Section of the Act of 1841 ten years, within which the entry is to be made, after the right of entry accrued. The construction of the statute of James I. is well settled; and a holding by any one adversely to the true owner, for twenty years, will bar the right of entry, and consequently, the right of action, by ejectment, will also be barred. (Angell on Lim., 384, Sec. 2.) With us, there is no action of ejectment, but instead of it, we have the action of trespass to try title to land which, by express declaration of the statute, in the trial is to be governed by the rules which govern an action of ejectment; and it follows, as a consequence, whatever would bar an action of ejectment, will also bar our action of trespass, as both actions depend, for their right to maintain them, upon the right of entry.

But it may be said that the defendants could not have the benefit of this defense, because the ten years, in which the plaintiff could have a right of entry and a consequent right of action, had not expired when the action was commenced. From this, it cannot follow that the Court can make and interpose a bar, one having been prescribed by law; but the consequence is, that the plaintiff is not barred of his action.

The opinion referred to at page 148, shows that the Court would not have adopted a period of limitation, by analogy to the statutue, if there had been any provision of the statute, which applied and embraced the case. And here, too, no period can be adopted, for the reason that an express provision of the statute applies; and consequently, it cannot be said that the demand is stale, the plaintiff has been guilty of laches, or that the contract has been abandoned, nor did the law, indicated by these positions, apply to an action at law.

Phillips & Phillips and Lytle & Stockdale, also, for appellant.

J. N. Mitchell, for appellees. This is an action of trespass to try title to land; in it the plaintiff can only recover on the strength of his title merely; and as by his petition he does not proceed for specific performance of contract, that cannot be decreed by the Court, under this state of pleading.

But the defendants having in their answers proceeded for, and prayed a rescission of the contract, that may be decreed to them; especially as it appears by the proof in this case, that the purchase money has not been paid or tendered; for, by the lapse of time, the lands have greatly increased in value. Time of payment became, and is, material, and of the essence of the contract, and non-payment by plaintiff's intestate, at the time stipulated, or at the least, in a reasonable time, authorized the defendants to treat the contract as a nullity; and there was no necessity to foreclose the mortgage; for whatever conveyance was made, was only in the intention of the parties and in legal effect, merely a part of the mortgage, constituting the two together one integer, entirety or whole act; and to become perfect and effectual only after the performance of the conditions stipulated for on part of the mortgagor.

A. S. Cunningham, also, for appellees.

LIPSCOMB, J., did not sit in this case.

HEMPHILL, CH. J.

This is an action of trespass to try title, brought on the 24th February, 1847, by Wilkins Hunt, administrator of Alexander Dunlap, deceased, against John D. Wright. Margaret T. Wright, wife of the defendant, subsequently intervened and became a party defendant. The allegations of the petition are in the usual form. The land is described as lying in the county of Victoria, on the west side of the Guadalupe river, adjoining the lines of the town tract on the upper side, and as containing a full league, fronting on the river at least two miles and a half, and running back with parallel lines so as to include the quantity of a league, being the same land surveyed by James Kerr, in 1830, for Margaret Trudeau, now Margaret Wright. There is a prayer for damages and for a writ of possession.

The verdict and judgment were for defendants; and motion for new trial being overruled, the plaintiff appealed.

Several points of importance are presented in the cause. It will not be essential, however, to discuss but one; for that has such controlling force, that if decided in favor of defendants, the judgment must be affirmed--although all others might be admitted or decided for the plaintiff--and that is, whether under the facts of this case, the purchase money being unpaid, the plaintiff has any such title as will support the action. It may be admitted, for instance, that...