Emmons v. Oldham

• Decision Date: 01 January 1854
• Citation: 12 Tex. 18
• Parties: J. B. EMMONS, ADM'R, v. W. OLDHAM.
• Court: Texas Supreme Court

12 Tex. 18

J. B. EMMONS, ADM'R,

v.W. OLDHAM.

Supreme Court of Texas.

1854.

Where the appellant assigned as error that the Court made a certain order, and also that the Court set said order aside, this Court said, The appellant may select his ground, but he cannot assume opposite positions, ensuring success whatever may be the decision on the controverted point. These assignments neutralize each other, and we leave them without further comment. (Note 8.)

The improper joinder of parties is not a ground for dismissal of the suit as to those properly sued. (7 Tex. R., 173.) It may affect the costs, but does not reach the legal sufficiency of the pleadings.

The question being whether a contract to locate and clear out a league of land for the one-half, made in December, 1836, was invalid because in violation of some law in restraint of alienation, the Court said, The decrees of colonization of the State of Coahuila and Texas, No. 16 and No. 190, had been repealed, the first in 1832, and the latter in 1834, and had no force except in relation to contracts and titles made and emanating under their provisions. The restrictions, in these laws, on the alienation of lands, were qualified by the provision in the decree of the 26th March, 1834. But none of these restrictions, with or without the qualification of the law of 1834, can be held as operative after the adoption of the constitution of the Republic. The contract was sustained. (Note 9.)

Laches, or the staleness of the demand, must be taken advantage of in the Court below. A general demurrer is not sufficient.

See this case as to the diligence required of a locator; the contract being made in 1836, the certificate issued in 1838, land surveyed in 1841, and the patent obtained in 1847; the locator sued in 1848 for specific performance, and recovered.

In the case of Dobbin v. Bryan, we held that the General Land Office was not practically opened until some time in 1844.

Where there was a contract to locate land and procure a patent, and the locator proved that he caused the patent to be issued and paid the dues and fees, the Court held that the jury might presume that he, and not somebody else, had procured the location and survey to be made.

Where the Court instructed the jury that the most important question for their determination was as to the notice of Emmons, (the suit being on a contract of location, for one-half, Emmons being a subsequent purchaser, and the defense being the general denial, that the contract was void on its face, that the locator had failed in the performance of the condition of his contract, and that the defendant was an innocent purchaser;) if he purchased with notice of the existing equities of Oldham, he bought in trust for Oldham, and is bound to relinquish in his favor, and as they found the facts, they would find for either plaintiff or defendant, it was held there was no error.

Appeal from Denton. This suit was commenced by a petition filed by the appellee, against appellant's intestate and an infant child of one Marcilla Jones, for the specific performance of a contract alleged to have been entered into December 26th, 1836, between appellee and said Marcilla, by the terms of which, in consideration that appellee should “select, locate, and clear out of the office, a league of land to which said Marcilla is entitled under the laws of colonization,” said Marcilla should convey to appellee one-half of said land. Petitioner avers a performance of the contract by appellee, and a failure on the part of the said Marcilla, who was then dead, leaving the infant child, made a party defendant, but that she had previous to her death sold said land to the defendant Calvin B. Emmons, who is averred to have purchased with a full knowledge of the contract between appellee and said Marcilla. Said Calvin having died without service being had upon him, his personal representative, the appellant, was made defendant, who filed special exceptions to the petition, and answered, 1st, a general denial,--2d, that the contract was void,--3d, that said appellee failed in performance of the conditions of said contract on his part,--4th, that appellant's intestate had purchased the land from said Marcilla for a valuable consideration, without notice of said appellee's claim. And upon appellant's exception, the suit was dismissed; but this order, on a subsequent day, was set aside.

The suit was first dismissed as to the infant, then reinstated as to him, and again dismissed, and again reinstated. It appeared that the land was surveyed in 1841, but at whose instance did not appear. The appellant purchased in 1846; and the patent was issued in 1847, the appellee paying the dues and fees.

There was a general verdict for the appellee, and a decree of title for one-half of the league and labor, headright of said Marcilla, to appellee, and commissioners appointed to make partition. Motion for a new trial was overruled.

G. F. Moore, for appellant. I. Upon the subject presented in the 2d and 4th assignments of error, it is thought that the various and contradictory rulings of the court on pages 6th, 8th, 9th, and 11th of the record, present glaring irregularities in practice, which, if not calculated to impede and embarrass the appellant in the defense of his cause, yet occasioned an oppressive accumulation of costs finally imposed upon the appellant, as will be seen by the judgment, notwithstanding the suit was dismissed as to said minor, whom appellant was in no manner instrumental in either bringing or retaining in court. (Johnson v. Davis, 7 Tex. R., 173.)

II. The first assignment of error, presented for consideration, the dismissal under the demurrer, and the subsequent judgment setting aside this dismissal. Although the record does not show, that in express terms the demurrer was overruled, we think the petition having been dismissed upon the demurrer, its subsequent action in reinstating the cause must be regarded as a reversal of its previous decision, and tantamount to a judgment overruling appellant's exception to the petition, the validity of which we are consequently authorized to examine, in doing which we may also dispose of the 3d, 5th, and 7th assignments of error, so far at least as the same are not brought under review in a subsequent assignment.

The demurrer should have been sustained, because the infant child of said Marcilla Jones was made a party to the suit.

The demurrer should have been sustained because the contract, showing upon its face that it was for the conveyance of a part of the land, to which said Marcilla was entitled under the laws of colonization, before it had been granted, and the prohibition of the colonization laws against sale by a colonist of his lands before the title issued, not (as I can perceive) having been expressly or by necessary implication repealed, was illegal and void. (Hunt's Heirs v. Robinson's Heirs, 1 Tex. R., 748; Robins' Heirs v. Robins' Heirs, 3 Tex. R., 496.)

The contract having been executed in 1836, and the survey not having been made until five years afterwards, in 1841, and the patent not obtained until six years later, to wit, in 1847, about two months less than eleven years from the date of the contract, all which was shown by the petition and exhibits, there was such gross neglect on the part of the appellee, in the performance of his part of said contract, that it might well be said in the language of the exception, that the petition and exhibits showed no cause of action against appellant or others on said contract. “The party asking specific execution must always show that he has acted with fairness and good faith, and that he has been prompt to perform what was incumbent on him.” (Madison v. Chinn, 3 J. J. Marsh. R., 231.) The petition and exhibits showed such a laches and want of promptness, on the part of the appellee, as to have raised the presumption of an abandonment or rescission of the contract; (Mason v. Chambers, 3 Mon. R. 321;) and where a bill exhibited “a stale demand, a court of equity will refuse to decree, although the defendant does not, by plea or answer, insist on length of time as a defense.” (Chief Justice Bibb, in Barbone v. Witlock, 4 Mon. R., 189; Buck v. Halloway's devisees, 2 J. J. Marsh. R., 167, 168; Baker v. Biddle, 1 Baldwin, 394.)

III. The 6th assignment presents for review the action of the Court in overruling the motion for a new trial. To test the correctness of this it is necessary to determine whether the law, and more especially the facts, entitled the appellee to a verdict or judgment.

There being no mutuality in the contract relied upon, but it being optional with the appellee whether he would perform it on his part or not, it was not such a contract as entitled him to a specific performance, but he must seek redress by an action upon the penalty. (Butt v. Bondmant, 7 Mon. R., 423.) To authorize a decree enforcing a contract the agreement should be complete in all its parts, else the parties should be left to their legal rights and remedies. (Madon v. McQueen, 3 Marsh. R., 400; Fowler v. Lewis, 3 Marsh. R., 445; Smallwood v. Hansborough, 1 Wash. R., 290; Parish v. Oldham, 3 J. J. Marsh. R., 546.) It should be equal in all its parts. (Clitherall v. Ogilvie, 1 Desau. R., 250.)

Though the plaintiff may have performed on his part, whether the Court will decree a specific performance against the defendant or not, is a matter resting in its discretion. (See authorities last referred to, and Seymour v. Delaney, 3 Cow. R., 445.)

If time, either expressly or impliedly, is made of the essence of the contract, unless the vendee has complied with its terms within the time, the Court will not decree a specific performance against the vendor. (Scott v. Fields, 7 Ohio, 92.) Although the contract here does not stipulate within what time it should be performed by the appellee, yet there being no penalty imposed upon him for a failure to perform, and the...