Kauffman v. Brown

• Decision Date: 19 January 1892
• Citation: 18 S.W. 425
• Parties: KAUFFMAN <I>et al.</I> v. BROWN <I>et al.</I>
• Court: Texas Supreme Court

18 S.W. 425

KAUFFMAN et al. v. BROWN et al.

Supreme Court of Texas.

January 19, 1892.

Commissioners' decision. Section B. Appeal from district court, Titus county.

Action by Spill Brown, S. F. Brown, Sallie L Walker, L. M. Walker, and others against Kauffman & Runge and W. R. Edwards to try title to land. Judgment for plaintiffs. Defendants Kauffman & Runge appeal. Reversed as to plaintiffs Brown and others, and affirmed as to plaintiffs Walker.

W. H. Baldwin, S. P. Pounders, and W. P. McLean, for appellants. Todd & Hudgins, for appellees.

FISHER, J.

This is a suit by appellees, Spill Brown, S. F. Brown, George P. Brown, Sam H. Brown, Lucy Klopper, (joined by her husband, C. T. Klopper,) N. H. Long, (joined by her husband, John J. Long,) Sallie L. Walker, (joined by her husband, L. M. Walker,) and L. M. Walker for himself, against appellants, Kauffman & Runge and one W. R. Edwards, in the ordinary form of trespass to try title. Kauffman & Runge, for answer, plead not guilty, and that they "claim title to that part only of the land described in plaintiffs' petition to which defendant W. R. Edwards had title on the 27th day of September, 1883, and disclaim as to that part of the land which belonged to the minor heirs of J. T. and S. A. Brown at the date of the deed from plaintiffs, or a part of them, to W. R. Edwards, which bears date December 2, 1879; that said interest is about four-ninths of the whole of the land sued for, the same being an undivided interest." No answer was filed by Edwards. Judgment was rendered in the court below in favor of appellees against appellants and Edwards for the land. Two tracts of land were sued for and recovered.

Appellees introduced the following as their evidence of title: (1) Patents from the state to John T. Brown. (2) Deed from appellees Spill Brown, George T. Brown, S. H. Brown, N. H. Long, John J. Long, S. F. Brown, and Lucy Brown to W. R. Edwards. (3) Note executed by W. R. Edwards payable to Spill Brown, George P. Brown, Sam H. Brown, S. F. Brown, Lucy Brown, John J. Long, and N. H. Long, in the sum of $400, dated December 2, 1879, with interest from date at 10 per cent. per annum; the consideration being part of the purchase price of said lands conveyed to Edwards by said deed. (4) Deed from Ludie Brown, as one of the heirs of John T. Brown, conveying all of her interest in the lands to L. M. Walker. (5) Deed from R. L. Brown conveying one-eighth interest in said lands to L. M. Walker. (6) The evidence of Spill Brown to the effect that he, George P. Brown, Sam H. Brown, Lucy Klopper, N. H. Long, Sallie F. Walker, Ludie Brown, and R. L. Brown are the children of John T. Brown, deceased. S. F. Brown, one of the plaintiffs in the suit, is the surviving wife of John T. Brown, and mother of all said children of John T. Brown, and they are the sole heirs of John T. Brown, who died prior to the year 1879. The land was acquired by John T. Brown before his marriage. Three of the children of John T. Brown, to wit, Sallie F. Brown, Ludie Brown, and R. L. Brown, were minors at the date of the execution of the deed by Spill Brown, George P. Brown, S. H. Brown, N. H. Long, John J. Long, S. F. Brown, and Lucy Brown to W. R. Edwards. Sallie F. Brown married L. M. Walker, one of the plaintiffs. Lucy Brown, one of the grantors in the deed to Edwards, married C. T. Klopper. The note executed by Edwards for $400 has never been paid, or any part thereof. The title of Kauffman & Runge is shown by the following evidence introduced by them: (1) Mortgage executed by W. R. Edwards, of date September 27, 1883, on the lands in controversy, with other lands, to Block, Oppenheimer & Co., securing certain notes executed by Edwards to Block, Oppenheimer & Co. (2) Judgment in favor of Kauffman & Runge against Edwards on the indebtedness secured by said mortgage, and also a judgment foreclosing the mortgage, and ordering the land sold. (3) Order of sale of said lands under said judgment of foreclosure. (4) Sheriff's deed to Kauffman & Runge as the purchasers of the land at such foreclosure sale under said judgment. (5) Deed from the Browns to Edwards, — the same deed introduced in evidence by appellees. (6) The deeds from Ludie Brown and R. L. Brown to L. M. Walker.

This suit was instituted March 22, 1888. The deed from the Browns to W. R. Edwards was executed December 2, 1879. The consideration for the purchase of said lands, as stated in said deed, is $900; $500 of this was paid in cash by Edwards, and the $400 unpaid is represented by the note executed by Edwards, as shown by the note offered in evidence by appellees. The note was due and payable 12 months after date. The note expressly retained a vendor's lien on the lands, but none was reserved by the terms of the deed. The deed executed by the Browns to W. R. Edwards contains the following stipulation: "We further bind ourselves to see that said W. R. Edwards obtains title to the portion of said tract of land belonging to the minor children of John T. and S. F. Brown without further cost; this deed being intended to cover the whole of said two tracts of land." All of the appellees except the Walkers, who represent and own the interest of the three minor heirs of John T. Brown, rest their right to recover the lands upon the fact that W. R. Edwards and appellants failed to pay off and discharge the $400 note executed by Edwards as a part of the consideration of the purchase of said lands, upon the theory that the note retaining an express vendor's lien on the lands constituted the sale thereof executory, thereby leaving the legal title in the vendors. The correctness of this as a legal proposition is not denied. McKelvain v. Allen, 58 Tex. 387; Lundy v. Pierson, 67 Tex. 237, 2 S. W. Rep. 737. But whether or not this principle of law, under the facts of this case, should here be enforced and applied, is the sole question that we determine in this opinion. It is contended by appellants that the failure of the Browns to comply with the terms of the deed so executed by them to Edwards, wherein they agreed and obligated themselves to obtain and furnish Edwards, free of further cost to him, a title to the interest of the minor heirs of John T. Brown in the lands sued for, precludes them from recovery unless they offered to do equity by refunding the purchase money that they had received. Appellees assail this position by contending — First. That this is purely a legal action, involving no element of the equitable proceeding to rescind the sale; and, as appellees ask for no such relief, they are not required to perform any equitable conditions precedent. Second. This being trespass to try title, simple and pure, appellants should have pleaded their equities, and "cleaned their hands" by first tendering to appellees the amount due them under the contract; and that the right of appellees to recover the land could only be defeated by payment of the amount due as the purchase money of the land. Third. That the condition in the deed to furnish Edwards the title of the minor heirs was complied with by the vendors of Edwards offering to comply with the stipulation before suit was instituted. The only evidence in the record tending to prove an offer to furnish Edwards the title of the minor children of John T. Brown and S. F. Brown is the testimony of Spill Brown, to the effect "that before this suit was brought he proposed to Edwards to make him a title to the interest of said three minor heirs. He said he did not wish it then. This was after the mortgage had been made by Edwards, under which Kauffman & Runge claimed." This offer or tender, as it may be termed, was not followed by any further offer made by all of the parties who executed the deed to Edwards, when it was agreed that they would furnish him the title of the minor heirs of Brown, but was made solely by Spill Brown. No offer was made to the appellants in this case to comply with the agreement,...