Hanks v. Enloe

• Decision Date: 01 January 1870
• Citation: 33 Tex. 624
• Parties: WYATT HANKS v. B. C. ENLOE.
• Court: Texas Supreme Court

33 Tex. 624

WYATT HANKS

v.B. C. ENLOE.

Supreme Court of Texas.

1870.

1. No principle of law is better settled than that one joint tenant cannot bind his co-tenant in a contract for the sale of their joint real estate, without express authority from the co-tenant anterior to the contract, or a ratification of the contract by the co-tenant afterwards.

2. It is as imperative that a petition should allege a good cause of action as that the evidence at the trial should sustain it.

3. In a petition for the specific performance of a contract for the sale of lands, or for damages in lieu thereof, the plaintiff alleged a written advertisement of the sale, signed by two joint tenants, but also set out a certificate of his purchase at the sale, which certificate was made by one only of the joint tenants, and there were no allegations by which the certificate was shown to be binding on the other joint tenant. Held, that the petition disclosed no cause of action against the joint tenant who did not execute the certificate, and it was error to overrule his demurrer to the petition. The advertisement alone would not suffice to charge him.

4. The statute of limitations may be interposed by demurrer or exceptions expressly setting up that defense to the action.

5. Suit was brought in 1853 on an obligation made in 1840 for the conveyance of title to certain lands within twelve months, and it was alleged in the petition that the defendants never became able to convey title until 1853. The prayer was for specific performance, or for damages. The defendants excepted to the petition because it was apparent on its face that the action was barred by limitation. There being no other feature in the case to prevent the bar of the statute, it is held that the exceptions should have been sustained.

APPEAL from Tyler. Tried below before the Hon. James M. Maxey.

The certificates of purchase, on which this action was founded, were in the following terms:

“REPUBLIC OF TEXAS, LIBERTY COUNTY, No. 38. This certificate entitles the bearer to one share in the town of Natchez, situated on the Neches river at the place formerly called Town Bluff, consisting of five lots which may be drawn to the number of this certificate, for which a good and sufficient warranty deed will be given in twelve months from this date. Given under my hand and seal this second day of March, A. D. 1840.

+----------------------+
                ¦(Signed)¦JOHN NOLAN.” ¦
                +----------------------+
                

As the opinion of the court discloses the facts pertinent to the rulings made, there is no occasion for a repetition of them here.

In the court below there was a general verdict for the plaintiff, who is the appellee in this court; on which verdict the court decreed that the defendants should, within six months, make and deliver to the plaintiff good and sufficient warranty deeds to fifty average town lots in value and quality, in the town of Town Bluff on the Neches, in Tyler county; and in case the defendants fail to make such titles within the time limited, it was adjudged the plaintiff recover of them the sum of five hundred dollars, the amount of the purchase money, together with seven hundred and forty-six dollars interest thereon.

Hicks & Neylands, for the appellant, addressed themselves principally to the facts of the case.

No brief for the appellee.

OGDEN, J.

This is a suit originally brought to enforce a specific performance of a contract for the conveyance of land, with a prayer in the alternative for judgment for the purchase money with interest.

The suit was instituted by the appellee in October, 1853, against the appellant Wyatt Hanks, and the administratrix of John Nolan, deceased, and in his petition he alleges that, in 1840, Hanks and Nolan being the sole owners of a certain town plat or tract of land, then in the county of Liberty, called Town Bluff or Natchez, advertised the same for sale in shares of five lots each; that Hanks and Nolan, in March, 1840, sold the same or a portion thereof, according to the terms in said advertisement; and that appellee became the purchaser of ten shares, paid the purchase money, and took certificates of purchase, wherein the vendor agreed to make title to the lots purchased, within twelve months from date; and the...