Holman v. Criswell

• Decision Date: 01 January 1855
• Parties: JOHN T. HOLMAN AND OTHERS v. JOSEPH E. CRISWELL.
• Court: Texas Supreme Court

15 Tex. 394

JOHN T. HOLMAN AND OTHERS

v.JOSEPH E. CRISWELL.

Supreme Court of Texas.

1855.

In a suit on a bond for title, for specific performance, an averment that the obligee failed and refused and still fails and refuses to perform the stipulations and conditions of the bond, is a sufficient averment of breach.

The rules of pleading, as found in Chitty and other elementary treatises, and as recognized in the decisions of law courts, have no conclusive authority in our system of procedure. Any allegations which would show with reasonable certainty the cause of action or ground of defense, will be sufficient, without reference to conformity with or departure from the rules of pleading as recognized at common law.

Where the vendee has paid the purchase money in full, the vendor holds the title as trustee for him, and limitation will not commence to run against an action for specific performance until the vendor manifests an intention, by adverse possession or some hostile act, to claim and hold the land as his own; but it is not necessary, in order to cause the statute to commence to run, that there should have been a demand and refusal of performance.

Where the ancestor covenanted to make or cause to be made a good and bona fide title or deed to the land agreed to be conveyed, it was held that a decree against the heir for a deed with warranty to the extent of the inheritance was not erroneous.

Where the vender covenanted to convey by bond dated December 30, 1840, acknowledging the receipt of the purchase money, and suit for specific performance was commenced by an assignee of the bond, against the heirs of the obligor, on the 23d of August, 1852, and the defendants pleaded the statute of limitations of four years, and there was no allegation or proof of any act of the obligor or his heirs manifesting an intention to claim the land as their own, the plaintiff recovered.

Appeal from Fayette. This was a suit for specific performance, commenced August 23, 1852. The appellee, who was plaintiff below, alleged that J. B. Alexander, in his lifetime, on the 30th day of December, 1840, executed to one Horatio Griffith his bond for title to two hundred and twenty acres of land; that the said Horatio Griffith, on or about the 18th of February, 1847, assigned his interest in the 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 assignment was made a part of the petition.

The consideration of the bond was that: Whereas, Horatio Griffith purchased of Jerome B. Alexander two hundred and twenty acres 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 Benj. Green, being a part of said Green's headright, the said Jerome B. Alexander binds himself, his heirs, etc., 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, etc., the said Griffith holding himself responsible to the said Alexander for the surveying and rccording fees, etc. The petition further alleges that the only part of the Green 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 wife and the said minor, are made parties defendant.

By an amended petition the plaintiff alleged that the said Jerome B. Alexander departed this life without having complied with or in any manner performed the stipulations or conditions of the aforesaid bond; and that the defendants have failed and refused, and still fail and refuse, to comply with the stipulations and conditions of said bond, although often requested so to do.

The defendants filed a general demurrer, and pleaded the limitation of four years. There was judgment and decree for the plaintiffs, and the defendants prosecute this writ of error.

W. G. Webb and J. T. Harcourt, for appellants. I. The demurrer to the petition as amended ought to have been sustained. (1 Chit. Pl. 332.)

II. The plea of limitation of four years should have been sustained.

III. The decree for a warranty is erroneous. (3 Bibb, 52.)

Hamilton & Chandler, for appellee.

HEMPHILL, CH. J.

This cause was at a previous term before this court, and for the error of overruling the demurrer to the petition, the judgment was reversed and the cause remanded. (13 Tex. 38.) On a second trial, judgment was again for the plaintiffs, and the cause is again brought up with an assignment of various errors, some of which are argued and some submitted to the court without argument.

The first assignment charges error in overruling the demurrer to the petition. The objection to the original petition was no averment of breach of the conditions of the bond, and upon this ground, as will be seen by reference to our former...