Harris v. Catlin

• Decision Date: 01 January 1872
• Citation: 37 Tex. 581
• Parties: DOUGLASS HARRIS v. J. H. CATLIN.
• Court: Texas Supreme Court

37 Tex. 581

DOUGLASS HARRIS

v.J. H. CATLIN.

Supreme Court of Texas.

1872.

The ruling in Thomas v. Beaton, 25 Texas, Supplement, page 318, cited and approved, to the effect that he who asks a rescission of a contract for the sale of land, when he has received a large portion of the purchase-money, is subject to the maxim that he who seeks equity must do equity, and must offer to restore the consideration money which he had received.

APPEAL from Austin. Tried below before the Hon. Livingston Lindsay.

In 1856, John O. Whitfield sold the land in controversy to Sarah S. Kirby; the land was to be paid for in three installments.

In 1860, S. S. Kirby, having paid part of the purchase-money, executed her promissory note to Whitfield for the balance due on the land.

In 1862, Sarah Kirby died in possession of the land; and in 1863 Whitfield died, leaving T. B. White as his executor, who in 1864 presented the note to the administrator of Sarah Kirby's estate for allowance, and the allowance was made.

In 1869, Harris, who had qualified as administrator de bonis non of Whitfield's estate (White having resigned the executorship), instituted this action of trespass to try title to the land, against P. H. Swearingen, administrator de bonis non of Kirby's estate. Pending the suit, Swearingen sold the land to the appellee Catlin, who appeared and made himself party defendant to the suit in the place of Swearingen. Plaintiff then amended his petition and charged that the note above referred to was executed by Kirby for a balance due on the land, and that the sale to Catlin by Swearingen was a fraud, and that the defendant and Swearingen had conspired together to swindle the estate of Kirby, and prayed for a cancellation of the administrator's deed to Catlin, as also of the agreement relative to the sale of the land between Whitfield and Kirby, and to quiet plaintiff's title to the land; upon which being done, he offered to surrender his claim against Kirby's estate.

Defendant demurred to the petition, because, among other reasons, in asking a rescission of the contract between Whitfield and Kirby, it did not offer to restore the purchase-money already paid; because plaintiff presented himself in the equivocal attitude of holding Kirby's estate for the balance due on the land, and at the same time trying to recover the land itself; and because by electing to prove up his claim against the estate of Kirby he waived his lien upon the land.

The demurrer was sustained and judgment rendered in favor of the defendant, and plaintiff appealed.

Ben. T. Harris, for the appellant.

A. Chesley, and Hunt & Holland, for the appellee.

WALKER, J.

The appellant, as the administrator de bonis non of John O. Whitfield, commenced this suit in the form of an action of trespass to try title, on the 1st January, 1869. The case was disposed of on demurrer, and is brought by appeal to this court. Whitfield left a will nominating Thomas B. White his executor, and on 2d December, 1864, the latter presented a note to the administrator of Sarah S. Kirby's estate for allowance, calling for three thousand three hundred and fifty dollars and...