Hild v. Linne

• Citation: 45 Tex. 476
• Parties: GEORGE HILD v. ERNST LINNE AND F. G. SCHMIDT.
• Decision Date: 01 January 1876
• Court: Texas Supreme Court

45 Tex. 476

GEORGE HILD

v.ERNST LINNE AND F. G. SCHMIDT.

Supreme Court of Texas.

1876.

APPEAL from Guadalupe. Tried below before the Hon. J. P. Richardson.

L. J. Storey, for appellant.

John Ireland, for appellees, cited 20 How., 235;17 How., 340;13 Tex., 490;9 Tex., 144; Lead. Cases in Eq., 87.

MOORE, ASSOCIATE JUSTICE.

On the 1st of September, 1870, the appellant brought suit against appellees to recover possession of six and a half acres of land, and to enforce the specific performance of a contract entered into in December, 1856, by appellee Schmidt, with Fredrick Newman, for the sale of said land to said Newman, at the price of thirteen dollars, four dollars of which was paid in cash, and the remainder to be paid at a subsequent day.

To the petition and amended petitions the appellees interposed a general demurrer, which was sustained by the court, and appellant declining to amend, his suit was dismissed.

From the argument of counsel, we suppose the demurrer must have been sustained upon the ground that appellant's action was a stale demand and barred by limitation, or that no cause of action was shown by the petition, because it was not alleged that appellant had performed his part of the contract, and had demanded the title before bringing suit. Upon neither of these propositions can the judgment of the District Court, in our opinion, be sustained.

Schmidt stipulates in his bond to put the title to himself on record as soon as it could conveniently be done, and then to make title to Newman, on payment of the balance of the purchase-money, but no definite time is designated in the bond for its payment. The inference is, that Newman was placed in possession of the land, and held it until his sale and assignment of the bond to appellant, September 24, 1859, who, as we must infer from the petition, remained in undisturbed possession of it until 1869, after the sale by Schmidt to Linne. Conceding that the unpaid purchase-money was due on demand, it cannot certainly be insisted that the vendor could repudiate the contract, or enter and dispossess the vendee, when time is not of its essence, without a demand for payment, and without giving the vendee notice of his intention to annul the contract unless the purchase-money still due was promptly paid. (Scarborough v. Arrant, 25 Tex., 135.) The vendor and vendee, under an executory contract for the sale of land, so long as they manifest no intention to refuse to perform the contract, occupy a trust relation to each other. (4 Tex., 167.) And had the vendor brought suit for the land, instead of selling it to another, the vendee, not having repudiated the contract otherwise than by delay in...