Hemming v. Zimmerschitte

• Decision Date: 31 December 1849
• Citation: 4 Tex. 159
• Parties: HEMMING v. ZIMMERSCHITTE.
• Court: Texas Supreme Court

4 Tex. 159

HEMMING

v.ZIMMERSCHITTE.

Supreme Court of Texas.

December Term, 1849.

A writing purporting to be an answer, but not signed by either the defendant or his attorney, cannot properly be classed among the pleadings in the cause.

In an alternative contract, where the obligor has, until the day of performance, the option of which of two things he will perform, the right of election is lost if he suffer the period to elapse without performance of either; and so, by analogy, the right would be gone if no particular period were fixed, and performance were delayed until demanded by the obligee.

A bond conditioned to be void upon the conveyance of land cannot be discharged at the pleasure of the obligor by the payment of the penalty or damages, but entitles the obligee to demand a conveyance of the land at all events. This is the usual form assumed in this country by contracts for the sale of lands; and in their construction the penalty has been regarded as intended to secure the principal intent and object of the transaction, viz, the conveyance of the land, and to reimburse such damages as the obligee may suffer where performance is impossible, &c. (Note 32.)

It will be seen by reference to the statute of limitations that in no one of its provisions does it include an action for the specific performance of agreements for the transfer of property. The rules prescribing such actions must be sought elsewhere. They are to be deduced from decisions where the extent to which the rights of parties to equitable relief have been affected by their laches has been the subject of adjudication. (Note 33.)

The vendor and vendee under an executory contract for the sale of land occupy mutually and respectively towards each other the relation of trustee and cestui que trust so long as they do not indicate by their acts an intention to refuse compliance with the obligations imposed by the contract. (Note 34.)

Where the vendee has performed all his obligations, the vendor's subsequent possession or interest in the land is held in trust and in subordination to the superior equitable right of the vendee; and this possession continues to maintain its fiduciary character until the vendor manifests an intention to refuse performance or to claim and enjoy the land as his own; and until that be done in some mode, the laws of limitation or the rules on the subject of laches do not commence their operations so as to exclude the vendee from his relief in equity. (Note 35.)

Quere? As to the rule of limitation where the vendee is fully clothed with the equitable title, and the vendor indicates his intention to refuse performance or to claim the property as his own.

Error from Colorado. This suit was brought by the plaintiff in error against the defendant in error “to enforce the specific performance of a title bond for two hundred and fifty acres of land.”The date of the bond was the 28th of August, 1839. The petition was filed on the 16th of September, 1846. By the bond the defendant acknowledged himself to be held and firmly bound unto the plaintiff in the sum of $4,000, with a condition in the following words:

“Now the condition of the foregoing obligation is such that if I, the said Zimmerschitte, my heirs or assigns, for and in consideration of seven hundred and fifty dollars to me in hand paid, the receipt whereof is hereby by me acknowledged, shall make or cause to be made to the said John Hemming, his heirs or assigns, a good and valid title to the following-described tract of land containing two hundred and fifty acres, then the above obligation to be void and of no effect; otherwise to remain in full force and virtue.” Then follows a description of the land.

The record contained a copy of a writing (filed April 3, 1847) purporting to be an answer, and setting up the statute of limitations as a defense; but it was not signed either by the defendant or his counsel. On the 17th of October, 1848, defendant filed a general demurrer. On the 14th of April, 1849, defendant obtained leave to amend his answer. On the 17th of April, 1849, plaintiff amended by making the bond a part of his petition, and same day defendant filed another general demurrer. On the 15th of October, 1849, plaintiff excepted to defendant's answer. On the 19th of October, 1849, the court sustained the defendant's demurrer and dismissed the suit. The plaintiff moved the court to set aside the order sustaining the demurrer and dismissing the suit. Overruled.

The errors assigned were--

1st. That defendant was permitted to file a general demurrer subsequent to an answer to the merits.

2d. The overruling of plaintiff's exceptions to the answer.

3d. The sustaining of the demurrer of defendant.

Pease, for plaintiff in error. It is to be regretted that our practice of allowing general demurrers does not present to the appellate court the grounds on which the court below decided; and we are compelled to conjecture in such cases what they were. In this case it is impossible to ascertain, from an inspection of the record, for what cause the demurrer was sustained. The suit was brought to compel the specific performance of the bond of the defendant to make a title for two hundred and fifty acres of land. That the court had jurisdiction to make such a decree is well settled. On this subject see 2 Story's Eq., secs. 715, 751. The bond is well set out and sufficiently described in the petition; for it makes a part of it and is attached to it. The petition and amendments contain sufficient allegations on which to have rendered a decree if they were true; and for the purposes of the demurrer they must be taken as true.

The truth is that the demurrer was sustained on the ground that the plaintiff's cause of action was barred by the laws of limitation, although this is not shown by the record. Our statute of limitations prescribes no time within which a suit for specific performance shall be commenced. The undertaking of the defendant in his bond was to make a title to the land described; and no time being named within which he should make this title, it was his duty to have executed the title and tendered it to the plaintiff. The only cause of action the plaintiff had under the bond was a suit for the specific performance until the defendant had refused to make the title or put it out of his power to do so. When this bond was executed, the defendant became the trustee for the plaintiff and held the land for his use. (2 Story Eq., sec. 1212.) No limitation could run in favor of defendant until by some act he indicated that he intended to hold the land adversely to plaintiff; such as a refusal to make the title, a sale, or some other disposition which showed an intention to appropriate it adversely to plaintiff. The plaintiff could not have maintained an action for damages unless he could show that the plaintiff had refused to make a title or placed it out of his power to do so; for it was the right and privilege of defendant to discharge himself from his obligation by making the title. If the petition showed that defendant had refused to make the title or placed it out of his power to do so four years previous to the commencement of this suit, then it is possible the statute of limitations might avail. In such a case it might well be contended that as the plaintiff's right to an action for damages was barred, the court could not decree a specific performance. In this case it does not appear that there was any refusal to comply with the bond until this suit was brought, and no action for damages accrued until that time. The court would not have permitted the defendant to discharge himself from this obligation by paying the penalty; so that it cannot be considered as a money claim, to be barred in four years. (2 Story Eq., sec. 715.) The penalty in the bond must be considered as a mere security for the performance of the agreement, (2 Story Eq., 715,) for the recovery of which no action accrued until there was a refusal to comply with the bond.

Rivers, for the defendant in error.

I. I deny that any suit for the conveyance of the land can be sustained. A contract is an agreement to do or not to do something, either express or implied. An express contract can only bind the parties by their expressions. It is perceivable from the phraseology of this contract that the parties intended the option for the benefit of the obligor. If, then, he makes his election by failing to convey the land, the bond becomes single, and a suit for the money only can be sustained. (1 Johns. R., 59; 1 Bailey R., 136; 1 Johns. Cas., 81; 1 Verm. R., 612.) Suppose the obligor had given his bond on one piece of paper, and the obligee had given the condition or the defeasance on another: would it for a moment be believed that the obligee could sustain an action for the specific performance of his own promise? To whom (at common law) would this contract have descended on the death of the obligee after breach? It is clear that a suit at law could be sustained for the money. The administrator would prefer to consider it a money demand, while the heir, on the contrary, (if this suit can be sustained,) would elect to take the land. The doctrine I contend for does not militate against that laid down by Story under the head of “penalty.” There the contract is to convey land under a penalty. Here a bond is given for money, which may be discharged, at the option of the obligor, by the conveyance of land. (1 Verm. R., 612.)

II. If a suit at law had been brought on this bond, as it well might, at the time this suit was brought, the claim would have been barred by the statute of limitations. Will, then, the plaintiff, by resorting to a bill in equity for specific performance, avoid the operation of the statute on the ground that the vendor was trustee for the vendee? If so, we have the anomaly of a suit in equity untouched by the hand of time, while a suit at law on the same instrument is stale. Yet st...