Holman v. Criswell

• Decision Date: 01 January 1854
• Citation: 13 Tex. 38
• Parties: HOLMAN AND OTHERS v. CRISWELL.
• Court: Texas Supreme Court

13 Tex. 38

HOLMAN AND OTHERS

v.CRISWELL.

Supreme Court of Texas.

1854.

Error from Fayette.

Webb & Harcourt, for plaintiffs in error. The first question presented for the consideration of the Court is the ruling of the Court below upon the exception to the petition. This being a general demurrer, attacked the foundation of the action, and, if correctly taken, defeats the plaintiff's right to recover absolutely. The exception should have been sustained, because there is no breach of covenant assigned in the plaintiff's petition; no allegation of the breach of any of the conditions of the bond sued on; no allegation of a demand upon the obligor in the bond, in his lifetime, for a performance of the conditions of the bond, and of his failure and refusal, or that since his death the said defendants have failed and refused to carry out the stipulations of the bond. The failure to comply with these stipulations, viz: on making the selection of the 220 acres of land out of one of the corners of a certain league of land in the county of Fayette, and to make that selection to the best advantage for the obligor, and then have the same legally surveyed, and a good bona fide deed executed for the same, constitute the subject matter of the complaint, and is, beyond question, the foundation of the cause of action. Yet there is no such issue tendered by the plaintiff's pleadings.

It is not only essential that there should be an assignment of breaches, in actions upon a penal bond, but these assignments should be stated with particularity, according to the facts, and with such certainty that the defendant may know what to defend. (1 Saund. Plead., 320; 2 Bac. Abr., 602, 603; 3 Bibb R., 330; 3 Marsh. R., 533.)

It has been well settled that a defective statement of the breach, so that thereby the contract does not appear to have been broken, would be bad on demurrer. (Lunn v. Payne, 6 Taunt. R., 140; Siclemore v. Thistleton, 6 M. & S. R., 9.)

In the case of Watt's executors v. Sheppard, the Supreme Court of Alabama decide that a breach must be so assigned as to show that the contract has been broken and that the plaintiff has a cause of action. (2 Ala. R., 425, and cases cited.

Applying to the petition in the case at bar the principles above laid down, we respectfully submit whether it contains these essential averments, or shows upon its face that the contract had been violated, and that the cause of action had accrued? If it does not, this demurrer was well interposed, and should have been sustained.

And it is insisted that the demurrer should have been sustained on another ground. The petition discloses the fact that the plaintiff, Criswell, had no such interest in or title to the said bond as would authorize him to maintain an action thereon, for the reason that the pretended transfer from Michael B. Griffith to said Criswell was not such a transfer or conveyance as the law contemplates in passing the title of an estate of inheritance or freehold, no seal or scrawl having been used. (Hart. Dig.. Art. 167.)

The conclusion of an instrument with the words “Witness my hand and seal,” when no seal or scrawl is affixed, does not make it a sealed instrument. (Williams v. Young, 3 Ala. R., 145; Vance v. Funk, 2 Scam. R., 263.)

II. The second assignment of errors calls in question the admissibility of the original bond sued on, as evidence for the plaintiff. It was clearly inadmissible for the same reason as urged above, to wit: that the plaintiff, Criswell, had no such interest in it as would authorize his maintaining an action thereon, the transfer or conveyance to him being illegal and void.

F. W. Chandler, for defendant in error. It is submitted that there is no error in the overruling of the demurrer. The suit was brought upon a bond for title, to compel a specific performance, and it was not necessary to aver or prove a demand. The commencement of the suit was a sufficient demand, for it was the duty of the obligor in the bond, or his heirs, to perform his contract; and if they had ever tendered a deed they might set it up in their defense. The other objection to the petition should have been taken advantage of by special exceptions, and not by general demurrer; or, perhaps, by objecting to the testimony; they failing to do so must be considered as waived.

HEMPHILL, CH. J.

This is a suit for specific performance. The plaintiff alleges that Jerome B. Alexander, in his lifetime, on the 30th December, 1840, executed to one Horatio Griffith his bond for title to 220 acres of land; that the said Horatio Griffith, on or about the 18th of February, 1847, assigned his interest in said bond and the land therein to be conveyed to one Michael B. Griffith, who afterwards, in 1849, assigned said bond to petitioner.

A copy of the bond and assignments is made a part of the petition.

The condition of the bond is, that whereas Horatio Griffith purchased of Jerome B. Alexander two hundred and twenty acres of land for two hundred and twenty-five dollars, the receipt of which is acknowledged, the land to be selected out of either corner of a half league of land lying on the waters of Buckner's Creek, belonging to the heirs of Benjamin Green, being part of the said Green's headright, the said Jerome B. Alexander binds himself, his heirs, &c., to make the selection to the best advantage, as he would for himself, and have the same legally surveyed, and make or cause to be made a good and bona fide title or deed, embodying the field notes therein, to the said Horatio Griffith, his heirs, &c., the said Griffith holding himself responsible to the said Alexander for the surveying and recording fees, &c.

The petition further alleges that the only part of Green's league of land to which Alexander had any title was two hundred and twenty-five acres, which are set out by metes and bounds; that Alexander departed this life in 1842; that his wife and son, Jerome, a minor, are his only heirs, and that his wife subsequently intermarried with one John T. Holman, who, together with the said wife and the minor, Jerome, are made parties defendant. The petition then alleges that by virtue of the execution of the bond by the said Jerome B. Alexander, and the various assignments and transfers by the parties therein described, the petitioner is entitled to a judgment and decree of the said Court, divesting the defendants of all title and interest in two hundred and twenty out of the two hundred and twenty-five acres of land, and vesting the same in the petitioner. The other matters set forth in the petition need not be noticed.

The defendants filed a general demurrer and other pleas, to which reference is unnecessary, as the only point which will be examined is that which arises on the assigned error in overruling the demurrer.

The grounds assumed by counsel in their elaborate argument in support of this assignment are,

1st. That there is no averment of breach of the conditions of the bond. 2d. That the plaintiff has no interest in the land, the transfer to him (set forth in the petition) being without seal.

To sustain the first ground several authorities have been cited from Common Law writers and Report, to the effect that in...