Kirkland v. Little
| Decision Date | 01 January 1874 |
| Citation | 41 Tex. 456 |
| Parties | H. H. KIRKLAND v. CHARLES LITTLE ET AL. |
| Court | Texas Supreme Court |
APPEAL from Henderson. Tried below before the Hon. John G. Scott.
Charles Little and Thomas Little sued in the District Court of Henderson county H. H. Kirkland upon the following obligation:
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¦“$1,500.¦DECEMBER 19, 1870. ¦
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On or before the first day of January, 1872, I promise to pay Charles Little, Robert Little, and Thomas Little the sum of fifteen hundred dollars specie, for the balance of the purchase money of 350 acres of land situated in Henderson county, Texas; said amount, fifteen hundred dollars specie, to be paid at the time specified if the title to said land is perfected to the satisfaction of said H. H. Kirkland, otherwise not to be paid until said title is so perfected. Said note to bear ten per cent. interest from the first day of January, 1872, until paid, upon the above conditions.
H. H. KIRKLAND.
Witnesses:
D. H. CONNELLY,
A. F. CONE.”
The original petition was in the usual form of an action on a promissory note; its execution; that it was overdue; that it was a lien upon land describing it, &c.
The defendant excepted: (1) because it did not appear that the obligation was due, and (2) because no title had been tendered to defendant for the land.
In answer, defendant alleged that plaintiffs were unable to make title to the land; that it belonged to Charles Little and his children by a second wife; that a tract of about 80 acres, represented to be part of the land included in the title bond, was not in fact ever owned by Charles Little, but was owned by one W. R. Buford; that this was the most valuable of the land sold; setting up improvements on that part of the tract, &c.; asking that the contract be rescinded; for damages, &c.
By amendment, plaintiffs alleged execution and delivery by Charles Little of a deed for the land with general warranty; that he had filed an inventory of the community property (including that described in the petition) owned by himself and deceased wife, and had filed a bond, conditioned and approved as prescribed by law, whereby he was given the control and management of the community estate, and could convey said land; denying fraud, &c.
The facts in evidence sufficiently appear in the opinion of the court.
There was judgment for the amount of the note and an order for sale of the land.
Defendants appealed.
Reagan & Greenwood, for appellant.
No brief for appellee.
The contract or agreement upon which this suit is brought is copied in and made a part of the petition. By its terms appellant promised and bound himself to pay appellees, on or before the first day of January, 1872, the sum of fifteen hundred specie dollars, the balance of purchase money for a tract of land bought of them, if the title to said land should be perfected by that time to the satisfaction of appellant, otherwise not to be paid until said title was thus perfected. Evidently, at the time this agreement was entered into, the parties supposed that there was some defect or uncertainty of some sort in the title which was given appellant. And to secure him against any damage or injury which might result therefrom, it was agreed that this part of the purchase money should not be paid by appellant until he should be satisfied that his title had been fully perfected.
It is not, however, the legal effect of this agreement that appellant might refuse payment for any mere captious or unreasonable objection to the title. His dissatisfaction must be founded upon some valid and legal objection. When it is made to appear that appellees have conveyed or caused to be conveyed to him a complete and perfect title to the land, or that they are able and ready to do this, and he is advised of the fact, then his obligation becomes absolute and unconditional, whether he is satisfied or dissatisfied with the conveyance. But, unquestionably, before appellant could be put in default, or called upon to pay the balance of the purchase money, he must be advised of the character of the conveyance by which it is claimed the title has been or it is proposed it will be perfected, so that he can accept it, if satisfactory, or if not, indicate the grounds of his objection.
The perfection of the title being the predicate upon which appellees' right of action depended, it should have been clearly and distinctly shown in the petition. In this respect the original petition was unquestionably defective, and the exceptions to it were well taken.
To cure this defect in the original petition, appellees filed an amended petition, in which they say that the land sold appellant was community property of the appellees, Charles Little and his deceased wife, at the date of her death, and that since the institution of this suit he had filed an inventory of the community estate of himself and his said deceased wife, and given bond for the payment to the heirs, &c. And they aver that said Charles Little was then ready to make appellant a good and sufficient title.
As this amendment,...
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Lambert v. Taylor Tel. Co-op.
...him. The question whether good and merchantable title is shown is one of fact. Mathews v. Caldwell, Tex.Com.App., 258 S.W. 810; Kirkland v. Little, 41 Tex. 456. The provision of the letter that 'when the abstracts and these instruments have been approved and good title is shown, then the sa......
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Ashe v. Yungst
...present constitution, where an estate is insolvent; for the facts of this case do not bring it within these rules. The case of Kirkland v. Little, 41 Tex. 456, has no application to this case. It simply holds, that to give the survivor the general power to sell the interest of a deceased wi......