Hiram Sharp's Ex'r v. Baker

• Decision Date: 01 January 1858
• Citation: 22 Tex. 306
• Parties: HIRAM SHARP'S EX'R v. SILAS BAKER.
• Court: Texas Supreme Court

22 Tex. 306

HIRAM SHARP'S EX'R

v.SILAS BAKER.

Supreme Court of Texas.

1858.

In a suit by the vendor, against the vendee, on a note given for a part of the purchase money of a tract of land, the defendant set up, as a defense, a failure of consideration, in this, that the plaintiff had bound himself, in a title bond, to make him a “good and sufficient deed” to the land, which he was unable to make, and had never had title to the land; and specified the defects of the plaintiff's title; the plaintiff averred, that the defendant purchased of him with notice of the character of his title, and took the risk of it; the defendant prayed a rescission of the contract, and alleged his readiness and willingness to pay the purchase money, if plaintiff would make him a good title; and the plaintiff also prayed a rescission of the contract: Held, that there being evidence tending to prove, that the defendant purchased with notice of the character of the plaintiff's title, it was error in the court below, in its charge to the jury, to take for granted, as the starting point in the controversy, that the contract must be rescinded, if the title was not in the plaintiff; and to fail entirely to charge the jury, upon the issue presented by the plaintiff, that the defendant took the risk of his title, with full notice of its character; especially, as attention was called to it, by the charges asked by the plaintiff.

Where a vendor, by his bond for title, binds himself to make the vendee a good and sufficient deed, when the purchase money shall be paid, and brings suit for a part of it, the vendee cannot resist the payment merely on the ground that the vendor's title is defective. The vendor is under no obligation to remove difficulties affecting the title, until the purchase money be paid.

The vendee, in such case, may pay the money into court, or allege a readiness to pay it, upon the title being made clear; when the court should suspend the plaintiff's remedy in the collection of the money, or otherwise protect the vendee, so that he shall get a good title, when the plaintiff receives the purchase money.

If the vendee in the purchase of a tract of land have full notice, or take upon himself the risk of a tax title, under which the vendor claims, and only stipulates for a deed, or regular chain of title under it; the court may enforce the contract (both parties asked that the contract of sale might be carried out and enforced, if it could be done upon the terms suggested by each of them respectively), and at the same time, so guard the rights of the vendee as to require the chain of title under the said tax title to be perfected, before the vendor is allowed to collect the purchase money.

In such a case, so peculiarly of equity cognizance, the facts being found upon special issues submitted, the final decree may be suspended until the rights of the parties can be adjusted, and fully secured, in the enforcement of their contract.

It seems that the proper course, in complicated cases like this, is to submit special issues for the finding of the jury.

The admission of illegal evidence, without objection, does not add any weight to it, if intrinsically it had none, and should have been excluded, upon objection. Not the introduction, but its merit, gives weight to evidence.

APPEAL from Navarro. Tried below before the Hon. R. A. Reeves.

This action was brought in the court below by Hiram Sharp, the appellant, against Silas Baker, the appellee, on a promissory note for the sum of $400. The defendant answered by a general denial, and also answered specially in an original answer and several amendmends, that the note was given in part payment for a tract of land, bought by Baker of Sharp, for which he held Sharp's bond, to make him a good and sufficient deed; that Sharp represented himself as having a good and legal title to the land, but in truth he had no title, except a bond from one Jourdon, who claimed under and through a void tax title; that the land was a portion of a six hundred and forty acre survey, made upon a land warrant to one J. H. Mills, and known as the J. H. Mills survey; that the tax title arose under a void sale, made by the tax collector, for the years 1849 and 1850, for taxes assessed against Mills; that the proceedings, in assessing and selling, were illegal and void (pointing out in what particulars they were defective); that Mills, previous to that time, had sold the land to one Smith, and that the title was then vested in said Smith. He also alleged that Mills was dead, and that the title to the land was vested in the heirs of Mills; that the tax collector, at the pretended sale for taxes, made a pretended deed or certificate for the land, to Louisa Frost and Lucinda McCabe; that the land, pretended to be sold to Baker, was a portion of said tract, sold and conveyed by said Lucinda to said Jourdon; that said Lucinda was a married woman, and was not joined in the conveyance to Jourdon by her husband, nor was she examined separate and apart from her husband, by the officer who took her acknowledgment; that the title from Jourdon to Sharp, was merely a bond from Jourdon, in which he obligated himself to procure a deed from the state, within a reasonable time; that Jourdon had died, without procuring said deed; that Sharp, at the time of the sale to Baker, had no valid title to the land, nor had he any at the time of the institution of the suit, and was wholly unable to make a valid title to Baker; that all of the representations of Sharp were false and fraudulent; that Sharp was insolvent, and that if defendant relied upon his bond, to recover back the purchase money, after paying it, with damages, he must necessarily lose the whole amount; that defendant had paid to Sharp, at the time of the purchase, seven hundred dollars in cash, and had given the note sued on, and another for the same amount, due one year after, for the purchase money, and had paid $_____ on the note sued on; that he had made improvements upon the land, to the value of $ _____. Defendant averred a readiness to pay the balance of the purchase money, on obtaining a good title to the land; and in the event of not obtaining such title, he tendered the bond for cancellation, and a surrender of the possession of the premises; and prayed judgment for the amount of the purchase money paid, with interest, and the value of said improvements.

The plaintiff amended, and admitted possession of the additional note referred to by the defendant, not sued on, and the amount paid by the defendant, but denied all fraud; and alleged that Baker, at the time of his purchase, was fully advised of all the facts in relation to the tax title, and made the purchase with a full understanding that he took the entire risk of the tax title upon himself; and that he put defendant in possession of said land, on the 21st February, 1855. He alleged that defendant had unlawfully neglected and refused to comply with the contract, wherefore he tendered both of the said notes to be cancelled, and prayed that the money paid by defendant, might be forfeited to him, and the defendant adjudged to pay for the rents and profits of the land, which he averred to be worth four hundred dollars per annum, from the 1st day of February, 1855; and that the bond of the plaintiff, held by the defendant, might also be cancelled. General exceptions were filed by both parties to the pleadings, and overruled by the court on the trial of the cause. The deed from McCabe, the tax collector, to Frost and Lucinda McCabe; a deed of partition, between Frost and McCabe; a deed from Lucinda McCabe, to Jourdon; a bond from Jourdon to Sharp; and the bond from Sharp, to Baker, were all introduced and read in evidence; as was also the note, on which the suit was brought, on which was an indorsement of $157.17; and the other note for $400, not sued on.

The plaintiff proved, by Jourdon Brown, that he was present at the trade between Sharp and Baker; was requested by Baker to read Sharp's title, which he did, and told Baker it was nothing but a tax receipt, or title, for land sold for taxes; was confident that Baker perfectly understood the character of the title; that in that conversation, Baker remarked to witness, that if plaintiff's title was not good, the place would answer for a home until he could get another. Witness did not recollect what passed between plaintiff and de...