Gober v. Hart
| Decision Date | 01 January 1871 |
| Citation | 36 Tex. 139 |
| Parties | MARY A. GOBER v. HARDIN HART. |
| Court | Texas Supreme Court |
1. In an executory contract, neither party can enforce performance by the other, without showing that he has performed his part of the contract, or is ready and able to do so.
2. In a suit by a vendor of real estate for the purchase-money thereof, he should show that he either has made the conveyance in full compliance with the terms of the sale, or is ready, willing, and able to do so, on the payment of the purchase-money.
3. It is not necessary that a purchaser of land by an executory contract should be evicted from the premises before he can resist payment of the purchase-money, provided he can show that there is a superior outstanding title that might at any time be asserted.
4. To enable a purchaser of land by an executory contract, to resist payment of the purchase-money on account of failure of title, it is not necessary for him to prove that his vendor is insolvent; nor is it necessary that he should offer to restore possession of the premises, when he does not ask a rescission of the contract.
APPEAL from Hunt. Tried below before the Hon. W. H. Andrews.
In the defense of a suit on a note for a balance of the purchase-money for a certain tract of land, the defendant in this case pleaded failure of consideration, in that the vendor had no right to convey the land and could not make a good or valid title to the same, as he had obligated himself to do; that suit had been instituted against the defendant for trespass upon the land; that, as the defendant was informed and believed, the plaintiff in that suit had a good and valid title to the land, of which title defendant had no knowledge at the time of her purchase, and that she would probably be evicted from the land; that she had paid a large portion of the purchase-money for the land, and if evicted she would suffer great loss and damage, and she prayed that further proceedings might be stayed in this suit, until the determination of the trespass suit against her.
The plaintiff excepted to this answer as follows:
First. The pretense of a trespass suit is no defense to the action.
Second. Because the defendant did not allege her vendors to be insolvent.
Third. Because it was not shown that the defendant was misled by any representations of the plaintiff.
Fourth. Because defendant did not offer to restore possession of the land to the plaintiff.
These exceptions were all sustained by the court below, and judgment was rendered in favor of the plaintiff; from which judgment defendant appealed.
J. A. Poage, for appellant.
Throckmorton & Brown, for appellee.
In an executory contract the general rule is that neither party thereto can demand nor enforce performance by the other, unless he shows that he has performed his part of the contract, or unless he shows not only his ability but his willingness to perform his part; and therefore, when the vendor sues for the purchase-money for real estate, he should show that he has made the conveyance in full compliance with the terms of the sale, or that he is now ready and willing and able to make such conveyance on the payment of the purchase-money. In the cause at bar the appellee brought suit on a note given in part payment for the purchase of a certain tract of land, and the defense set up is a failure of consideration, in this, that the vendor had no right to convey the land, and...
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Bourland v. Huffhines
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Scott v. Lott
...in not relieving the land of the Welder lien upon it in excess of $15 per acre. 5 Pomeroy Eq. Jur. (2d Ed.) §§ 2227, 2228; Gober v. Hart, 36 Tex. 139; Ferguson v. Sanders (Tex. Civ. App.) 176 S. W. 784; Fink v. Hough (Tex. Civ. App.) 153 S. W. 679. And in such suits, upon the breach of an e......
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Digiuseppe v. Lawler
...TREATISE ON EQUITY JURISPRUDENCE § 1408, at 2779 (3d ed.1905)); see also DeCordova v. Smith's Adm'x, 9 Tex. 129, 146 (1852); cf. Gober v. Hart, 36 Tex. 139, 140 (1871-1872). We reaffirmed the rule in Corzelius v. Oliver, 148 Tex. 76, 220 S.W.2d 632, 635 (1949) (notwithstanding defendant's r......
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Claflin v. Hillock Homes, Inc.
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