James v. Fulcrod

• Decision Date: 01 January 1851
• Citation: 5 Tex. 512
• Parties: JAMES v. FULCROD.
• Court: Texas Supreme Court

5 Tex. 512

JAMES

v.FULCROD.

Supreme Court of Texas.

1851.

The giving or refusal of instructions cannot be made a ground for the reversal of a judgment unless it appear that they were either given or refused.

There was no copy of a demurrer in the transcript of the record, but an entry that the defendant excepted to the overruling of the demurrer. The alleged error in overruling the demurrer was examined.

It seems that in a suit brought on an agreement concerning land it is not necessary to allege in the petition that the agreement was in writing. (Note 92.)

Under our statute of frauds an agreement creating a trust concerning land is not required to be in writing. (Note 93.)

Under our law express and implied or constructive trusts stand, as to their creation, or rather proof, upon the same footing.

A valuable consideration is either a benefit to the party promising or some trouble or prejudice to the party to whom the promise is made. A mutual promise is a sufficient consideration, provided the mutual promises are concurrent in point of time.

Contracts which are against public policy or in fraud of the law are void.

Combinations to stifle competition at a public sale, with the design of purchasing property at less than its fair value, are against public policy and void; but persons may unite in any such number as may be necessary to make the purchase advantageous to themselves, provided this junction of interest be without any dishonest motive or injurious consequences.

It would seem that fair competition may be defined to be such as arises from the interest of bidders, without restraint or check from any fraudulent confederacies, tricks, or artifices to promote that interest at the expense and injury of the vendor or others interested in the property.

There was an agreement between two persons to purchase together a lot at public sale, the one to bid it in for the benefit of both. The agreement was not dishonest in its motive, and there was no attempt to stifle competition or defraud the vendor of a fair price: Held, That had the question arisen otherwise than on demurrer, and had it been shown that the effect of this agreement prevented the property from attaining its full price, the transaction would have been repugnant to public policy, and consequently null and vaid. (Note 94.)

An agreement between two or more persons to purchase property together at an auction sale, and that one shall bid for the benefit of all, does not necessarily imply a dishonest motive and improper end or an injurious consequence; and if by reason of these it should be repugnant to fair dealing, he who objects to it because of such repugnancy must allege and prove the matters which render it liable to be thus impeached.

In the absence of a statement of facts, the verdict must be presumed to have been sustained by the evidence.

Error from Goliad. The petition stated that a short time before the auction sale of town lots in Goliad in December, 1846, the defendant in error (who was plaintiff in the court below) and the plaintiff in error (the defendant in the lower court) agreed to purchase together a certain town lot particularly specified; that it was expressly understood between the said defendant and the petitioner how the lot should be divided; that the defendant should have that part of the lot adjoining his residence, and that in consideration thereof he would bid off said lot for the plaintiff; that it was to the mutual interest and advantage of both plaintiff and defendant to purchase said lot as agreed upon between them, and that the defendant did bid off the said lot; that after the sale of the said lot the plaintiff called on the defendant, by his attorney, and offered to pay his part of the purchase-money, according to agreement, but the defendant refused to comply with his agreement, and demanded of the corporation a deed for the whole lot to himself; that the plaintiff was cheated and overreached by the defendant, as the latter well knew that he would have bought said lot had he not been induced by the false representations of the defendant to enter into said agreement.

The petition prayed that the defendant and the corporation be made parties, and that they be decreed to make title to the plaintiff to one-half of said lot and for equity, general relief, &c.

In answer to interrogatories propounded by the plaintiff the defendant admitted that he had agreed that they should purchase together the lot mentioned, upon condition that the plaintiff would pay one-half of the corporation dues on said lot; that there was no understanding between them as to how the lot should be divided; that the plaintiff had not tendered him the money or any part of it in payment of one-half of the lot; that he had taken the deed in his own name, as he had paid the money on the lot. No answer appeared upon the record, but the clerk certified that one had been filed and was now lost or mislaid.

The jury found that the plaintiff was entitled to that half of the lot which fronted on the San Antonio river, and it was decreed that on payment of one-half of the purchase-money the corporation should make to the plaintiff a good and sufficient conveyance for the same; that the plaintiff recover his costs, and that execution issue, and the entry of the judgment terminated as follows: “Therefore the defendant excepts to the opinion of the court overruling the demurrer in the case.”

A motion for a new trial was overruled and exception taken.

J. W. Allen, for appellant.

I. The contract was for the purchase, sale, and conveyance of land, and not in writing within the statute of frauds, and therefore void.

II. It was a nudum pactum, and therefore void for want of consideration.

III. Further, it was a contract against good morals, a fraud upon the corporation, and against public policy, as tending to diminish the price of lots by preventing competition in bidding at the sale, and therefore cannot be upheld and enforced in a court of justice, and the maxim there being ex turpi causa non orituractio. (1 Hart. Dig., 1568; 3 Ves., Jr.; Lofft. R., 342, 706.)

HEMPHILL, Ch. J.

The errors assigned are the overruling of the defendant's demurrer, the refusal to give certain charges as prayed for by the defendant to the jury, and the overruling the motion for a new trial.

The record does not show the disposition which was made of the instructions asked by the defendant, and it will be unnecessary to examine them with the view of ascertaining their correctness as legal propositions applicable to the facts of the case. The giving or refusal of instructions cannot be made the ground of reversal unless it be shown that they were either given or refused. (Hill v. Crownover, 4 Tex. R., 8.) Nor does the transcript furnish a copy of the demurrer. The certificate of the clerk shows that an answer was filed, and this may have responded to the law as well as the facts, and the entry shows that the defendant excepted to the overruling of the demurrer. This action of the court required, as an indispensable prerequisite, that a demurrer should have been pleaded, and we may therefore with propriety examine the alleged error in its disposal.

The grounds of error in this ruling of the court as assigned are--

1st. That the petition contained no allegation that the contract, being for land, was in writing.

2d. That the petition shows that the contract was verbal and that it was a contract concerning land, and was therefore void under our statute of frauds.

3d. Because it appears from the petition that it was a contract without consideration, and therefore void.

4th. Because it appeared by the petition to be, as it really is, a contract against public policy.

The first ground of error raises a question of pleading of no great importance and the discussion of which need not be pursued. I will only observe that I am not aware that it has been deemed necessary under the statute of frauds to allege in a declaration at law or in a bill in equity for specific performance that the agreement sued upon is in writing. (2 Stark. Ev., p. 341, note a; Rob. on Fr., p. 156; Welf. Eq. Pl., p. 3.)

The second cause of error presents the questions whether, under the laws of this State, a trust or confidence in lands can be created and declared by parol or verbally as well as in writing.

The proposition assumed in the brief is that all verbal contracts concerning lands are void under our statute of frauds. Now, the only provision bearing on such contracts is that clause of the first section which declares that no action shall be brought whereby to charge any person upon any contract for the sale of lands, slaves, tenements, or hereditaments, or the making any lease thereof, for a longer term than one year, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith, or “some person by him thereunto lawfully authorized.” (Hart. Dig., p. 454.)

The only contract in relation to lands which the statute requires to be in writing is the contract for their sale. The terms of the act should doubtless be liberally construed for the suppression of the mischiefs it was designed to prevent, and all agreements within its spirit and scope should be brought under its operation. To go further would be to assume legislative functions and transcend the authority of a judicial tribunal. The contract under consideration was intended to create an agency or trust concerning lands, and under no rational rules of construction can it be regarded as an agreement for their sale or as embraced within the provision requiring such contracts to be in writing.

The position in the argument, that the contract, being verbal and concerning lands, is void, is based not upon the act of this State to prevent frauds and fraudulent conveyances, (Hart. Dig., p. 454,) but upon the English act for the prevention of frauds...