Jackson v. Palmer

• Decision Date: 27 January 1880
• Parties: J. AND J. JACKSON ET AL. v. P. L. PALMER ET AL.
• Court: Texas Supreme Court

52 Tex. 427

J. AND J. JACKSON ET AL.

v.P. L. PALMER ET AL.

Supreme Court of Texas.

Jan. 27, 1880.

APPEAL from Liberty. Tried below before the Hon. Edwin Hobby.

Suit begun May 15, 1873, by John and James Jackson, as executors of Hugh Jackson, deceased, joined by John Jackson, Jr., James Jackson, Jr., Decandia Barrow and her husband, Solomon Barrow, (the last four, save Solomon Barrow, being the children of Hugh Jackson and Elizabeth Jackson, deceased, and their sole surviving heirs and legatees,) in trespass to try title, in the District Court of Liberty county, against Pinckney L. Palmer, for twelve-acre lot number 3 in block 19, in the town of Liberty, Palmer being then in possession of the lot, and claiming under a deed from William C. Abbott, vendee of the executors, who, acting under the will of Hugh Jackson, had previously--June 9, 1856-- conveyed the same to Abbott.

The petition alleged, amongst other things, that the lot and improvements constituted the homestead of Hugh Jackson and family at the date of his death, on the 12th of October, 1854, and remained such until after the death of his wife Elizabeth, which occurred in May, 1856; that Hugh and Elizabeth, at the dates of their deaths, respectively, died seized and possessed of the property; that in pursuance of item 4 of the will of Hugh Jackson, the executors, after the death of Elizabeth, sold and conveyed the property to William C. Abbott on the 9th of June, 1856; that Abbott agreed and promised to pay to the executors the sum of $1,500 in three installments of $500 each, evidenced by three promissory notes executed on and bearing same date with the day of sale and deed of conveyance to him, one of the notes being made payable to the executors twelve months after date, another twenty-four months after date, and the third thirty-six months after date; that on the same day of sale and conveyance to Abbott, in accordance with the terms of sale, to secure the purchase-money of the lot, Abbott executed his mortgage of the lot, together with some other property therein mentioned, whereby he reconveyed the lot to the executors, and “thereby reinvested them with the legal estate and title,” subject, however, to be defeated by the payment of the purchase-money; that both the deed of conveyance to the executors and mortgage by Abbott back to them were part and parcel of the same transaction, executed on the same day, and they were both proven up for record and filed and recorded together in the county clerk's office of Liberty county on the day of their execution. It further alleged that the vendor's lien upon the lot was expressly reserved by the vendors in making the sale to secure the payment of the purchase-money; that afterwards, Abbott, without having paid the purchase-money, save the first of the three notes, conveyed the lots and improvements to Pinckney L. Palmer by warranty deed, and died insolvent; that Palmer had both actual and constructive notice at the time of his pretended purchase from Abbott that the purchase-money had not been paid, and that the superior title to the premises was yet in the petitioners; that Abbott in his life-time, and his legal representatives since his death, in September, 1863, failed and refused to pay the balance of the purchase-money, and wrongfully prevented the foreclosure of the mortgage, though often requested; that of all these facts Palmer had full knowledge, and, therein fraudulently combining with the legal representatives of Abbott to defeat the rights of petitioners, ejected them from said premises in January, 1871, and since then has wrongfully withheld possession thereof to petitioners' great damage, &c.

The petition further alleged the minority of the children of the said Hugh and Elizabeth up to within two years of the filing of suit; that all the property belonging to the estate of decedents had been fully administered, debts paid, and partition had among said children, save the lot in controversy, which, it was averred, belonged, both in law and equity, to them as heirs and legatees aforesaid, unless and until the purchase-money therefor be fully paid according to the contract of sale to Abbott, with which Palmer refused to comply; that the premises when sold to Abbott were well worth $1,500, but by reason of use, neglect in repairs, &c., they are not worth exceeding $500; that none of the purchase-money, save the first above-mentioned note of $500, had been paid or in any manner satisfied or discharged; that Abbott and Palmer and their legal representatives have had the use and enjoyment of the premises since the day of sale thereof by the executors to Abbott, and that the petitioners and none of them have ever since the sale had or received any benefit therefrom.

The relief prayed for was, that the claim of Palmer, or pretense of right and title set up by him, to the premises, be annulled and forever barred, unless the purchase-money remaining due and unpaid be promptly paid off and discharged, with the interest accrued, as specified in the promissory notes to petitioners, to the end that the property might be restored in equity to those to whom of right it belonged, namely, the heirs and legatees of Hugh and Elizabeth Jackson; that if the purchase-money be not paid by defendant under the order of the court, then that the lot be adjudged to belong to the estate of decedents or their children, that the writ of possession issue, and that they have judgment for their damages and costs of suit, and general and equitable relief.

In 1874 defendant Palmer died, and after him John Jackson, executor, one of the plaintiffs, and the cause was continued from term to term to make parties, &c. Proper parties being made, (to wit, Palmer's administrator, widow, and children,) and the pleadings of the parties having been amended to conform to the change of parties, the cause came to trial at the September Term of the court, 1879; the defendants answering by demurrer, pleas of not guilty, statute of limitation of three, five, and ten years, res adjudicata, waiver of the vendor's lien by reason of the mortgage covering other property than the lot sold to secure the purchase-money, and four years' limitation as to the notes.

To defendants' answer, the plaintiffs interposed a demurrer, which being overruled, trial was had, resulting in verdict and judgment for the defendants. Palmer had actual and constructive notice of the mortgage when he purchased, which was executed and recorded contemporaneous with the deed, and recited that the notes were for purchase-money. From this judgment the plaintiffs appealed.

The plaintiffs' first charge asked, which was refused, and which is referred to in the opinion, was as follows, viz.:

“The deed and mortgage of the 9th of June, 1856, are to be considered together and as one instrument affecting the title of the property as conveyed by the Jacksons to Abbott, and you are instructed as to the legal effect thereof that said instruments operate to vest the superior title in the plaintiffs, and give them the right to recover the lot in controversy in default of the payment of the balance of the purchase-money that the evidence may show to be due and yet unpaid. If you believe from the evidence that the purchase-money promised by Abbott has not been fully paid according to the terms of the sale between him and the Jacksons, I charge you, the law is this: that, with respect to the plaintiffs, all the right or title which Palmer, or his legal representatives or heirs, acquired by the deed to Abbott, of date 12th of January, 1860, was what is styled the ‘equity of redemption,’ or a right...