Hart v. Bullion

• Decision Date: 01 January 1877
• Citation: 48 Tex. 278
• Parties: HARDIN HART v. M. D. BULLION ET AL.
• Court: Texas Supreme Court

48 Tex. 278

HARDIN HART

v.M. D. BULLION ET AL.

Supreme Court of Texas.

1877.

APPEAL from Hunt. Tried below before the Hon. Green J. Clark.

Hardin Hart brought suit, June 11, 1875, against M. D. Bullion, his wife, Sarah J. Bullion, and B. D. Martin, to rescind a contract for the exchange of land.

The obligation discussed in the opinion is as follows:

“An article of agreement made by and between M. D. Bullion and Sarah Bullion, his wife, of the first part, and Hardin Hart of the second part, witnesseth:

Bullion and wife transfer to Hardin Hart their one-fourth locative interest in thirty-two sections of land, described as follows:

Twenty-two sections of Fannin scrip, S. P. R. Co.--[Then follow the file-numbers of the surveys, and the number of each certificate.]

Also, one-fourth interest in ten sections, it being the??r locative interest in the M., E. P. & P. R. Co., to be located in counties No. ____, as follows:--[[[[[Following are given the numbers of the certificates.]

Said certificates transferred to O. H. P. Garrett.

For and in consideration of the hotel in Greenville heretofore sold by the said Hart to the said Bullion, by bond recorded in the records of Hunt county, and fifty acres of land out of the Russell headright, deeded by M. H. Wright to Hardin Hart, on the west side of Cowleach fork of Sabine, at the bridge on the Jefferson road; also, one block of land in the town of Greenville, No. ____; also, three lots in block ____, in the town of Greenville, sold by Charles Dougherty to Hardin Hart, and recorded in the records of Hunt county.

It is further agreed between the parties, that the said Bullion and wife are to be at all expenses in locating and patenting the thirty-two sections of land, and make, or cause to be made, to the said Hart a good and sufficient title to their one-fourth locative interest in the thirty-two sections of land; and the said Hart, so soon as said titles are made to the sections heretofore described, is to make to the said Bullion and wife a good and sufficient title to the above-described property, sold by said Hart to said Bullion and wife.

In testimony whereof, we hereunto set our hands and seals, (using scrolls for seals,) this the 6th day of March, A. D. 1871.

+-------------------------------------+
                ¦         ¦(Signed) ¦M. D. BULLION.   ¦
                +---------+---------+-----------------¦
                ¦         ¦         ¦SARAH J. BULLION.¦
                +---------+---------+-----------------¦
                ¦         ¦         ¦HARDIN HART.     ¦
                +---------+---------+-----------------¦
                ¦Witness: ¦         ¦                 ¦
                +-------------------+-----------------¦
                ¦DANIEL UPTHEGROVE.”¦                 ¦
                +-------------------------------------+
                

Which contract was duly acknowledged and recorded.

The opinion gives a full statement of the additional facts in litigation, and of the proceedings had.

Verdict and judgment were for the defendants. Hart appealed.

Richard B. Sample, for appellant, cited and discussed Hogan v. Crawford, 31 Tex., 634;Ratcliff v. Baird, 14 Tex., 45;Pugh & Shultz v. Chesseldine, 11 Ohio, 123;Fletcher v. Button, 4 Comst., 396;Hays v. Bonner, 14 Tex., 629; 2 Pars. on Cont., 535, 661; Estes v. Browning, 11 Tex., 243; Story's Eq. Jur., sec. 1098; Merchants' Mut. Ins. Co. v. Lacroix, 45 Tex., 158;Browning v. Estis, 3 Tex., 462;Secrest v. Jones, 21 Tex., 121;Baker v. Ramey, 27 Tex., 52;Gregg v. English, 38 Tex., 139;Scoby v. Sweatt, 28 Tex., 730;Roeder v. Robson, 20 Tex., 765;Yarborough v. Wood, 42 Tex., 94; 1 Greenl. Ev., sec. 37.

Upthegrove & Cushman, also for appellant, cited and discussed Green v. Chandler, 25 Tex., 155;Secrest v. Jones, 21 Tex., 121;Scarborough v. Arrant, 25 Tex., 130;Burleson v. Burleson, 28 Tex., 416;Page v. Arnim, 29 Tex., 69;Watson v. Hewitt, 45 Tex., 473; Hermann on Est., secs. 416, 467, 471.

J. J. Hill, for appellee.--What is a “reasonable time,” is not always a question of law. (2 Pars. on Cont., 661, note o.)

The contract, known as “exhibit A,” is an entire contract. (2 Pars. on Cont., 517-519, 5th ed.)

Election. (2 Story's Eq. Jur., sec. 1075; Big. on Estop., 503, 508, 511; Green v. Chandler, 25 Tex., 159;Roeder v. Robson, 20 Tex., 765; Sugden on Vend., 266; Rogers v. Green, 35 Tex., 730.)

The legal title was a bare, naked trust, in the patentee, held in subordination to the superior equitable rights of the locator. (Gibbons v. Bell, 45 Tex., 418.)

Waiver. (Price v. Dyer, 17 Ves., 356; Ex-parte Mills, 2 Ves., 299; The Marquis Townshend v. Stangroom, 6 Ves., 328.)

A condition in a sealed instrument may be waived by parol. (The Mayor, &c., of N. Y. v. Butler, 1 Barb., 326;Wood v. Perry, 1 Barb., 114.)

One may waive a strict compliance of terms by acts in pais. (Vroman v. Darrow, 40 Ill., 171;Merchants' Ins. Co. v. Lacroix, 45 Tex., 158;Lawrence v. Dale, 3 Johns. Ch., 23, 24;McKay v. Carrington, 1 McLean, 50; Fry on Spec. Per., 385, 389, 408-410.)

No vendor's lien. (1 Perry on Trusts, sec. 235, and references.)

The contract not varied. (Epperson v. Young, 8 Tex., 135;Callison v. Gray, 25 Tex., 84.)

MOORE, ASSOCIATE JUSTICE.

In November, 1870, appellant, Hart, sold to appellees, Bullion and wife, lots 1, 6, 7, and 8, in block 17, and lots 2, 3, 4, and 5, in block 23, in the town of Greenville, for the sum of $6,000, to be paid in land in the State of Texas, situated north of the Brazos river, at $2 per acre. On the 6th of March, 1871, this contract was cancelled by a written agreement, wherein Bullion and wife undertake and agree to transfer to Hart their one-fourth locative interest in thirty-two sections of land, twenty-two sections of which purport, as appears by the contract, to have been located in Fannin land district, by virtue of scrip issued to the Southern Pacific Railway Company, and returned to the General Land Office; and upon eight of which patents had issued to the heirs of Pendleton Marrah. The other ten sections, issued to the Memphis and El Paso Railway Company, transferred to one Garrett, seem not to have been then located. In consideration whereof, Hart, on his part, agreed and undertook, so soon as Bullion and wife should make, or cause to be made, to him “a good and sufficient title” to their said one-fourth locative interest in the thirty-two sections of land “located by virtue of said scrip, to make them a like title to said lots, and certain other lots in the town of Greenville, and fifty acres of land in the vicinity of said town.”

The certificates or scrip belonging to Garrett had been, previous to the date of this contract, or were shortly thereafter, filed or located by Bullion, on land in Denton county. But the land upon which they were so filed having been previously appropriated, these locations were invalid. Garrett thereupon withdrew said scrip from Bullion's hands, and annulled his contract with him for its location. And it is not pretended that Bullion is, or will be, able to make Hart a title to any part of the land which has been, or was to have been, acquired by the location of this scrip. It is insisted, however, and Hart admits, that he agreed and told Bullion, if he would secure him the titles, as stipulated, on the other scrip, that he would accept other lands in lieu of that lost by his failure to locate the Garrett scrip. And on the 3d of October, 1874, Bullion, as he says, in part compensation for the locative interest in the Garrett scrip, made to Hart a deed for 737 1/2 acres of other land. Hart, however, claims that this deed was not made for this purpose, but was intended to secure him against loss, by his having executed, to Bullion and others, at his request, a deed for a portion of the lots, for which title was not to have been made until the contract had been fully complied with by Bullion and wife.

It is not stipulated in said agreement of March 6, 1871, within what time Bullion and wife were to make Hart the title to the lands as therein stipulated. Nor does it appear, from said instrument, to whom said twenty sections of said scrip issued to the Southern Pacific Railway Company belonged, or with or for whom Bullion and wife had contracted to locate them. It appears, however,--and we must infer that this was known to Hart when the agreement between them was made,--that they claim the locative interest to which they had stipulated to make, or cause to be made, a good and sufficient title to Hart, under and by virtue of a contract which Bullion claims to have been made with him by Mrs. S. E. Murrah, who appellant, in his petition, alleges was the wife of said Pendleton Murrah, to whose heirs eight sections of the land located by said scrip was patented. This contract purports to have been made with Mrs. Murrah by Thomas P. Martin, as her agent, August 31, 1867. It designates and describes the certificates to which it refers by their numbers as given in the contract with Hart, and recites that they were issued to the Southern Pacific Railway Company, and transferred by said company to Pendleton Murrah; but does not show what interest Mrs. Murrah had in them, or by what right or authority she undertook to contract for their location, or could convey an interest in the land when located as compensation to the locator. Nor is her interest in the certificates, or her authority to make the contract, or the authority of Martin to act for or bind her, shown, or attempted to be shown, except as an inference from the contract itself, and the location of the certificates by Bullion, and the issuance of the patents on such location.

It may also be stated, in this connection, that it is expressly stipulated, in said contract, that said certificate should be located, and the field-notes thereof returned to the General Land Office, ready for patents to be issued thereon, within four months from the date of said contract; yet, with the exception of those patented at the date of the contract with Hart, none of the lands located by the “Murrah certificates,” as they are called in the transcript, were patented until after the...