Lawrence v. Simonton
| Decision Date | 01 January 1854 |
| Citation | 13 Tex. 220 |
| Parties | WILLIAM LAWRENCE v. THEOPHILUS SIMONTON. |
| Court | Texas Supreme Court |
Error from Robertson. This action was brought by the defendant in error against the plaintiff in error on two promissory notes. The defendant answered, and upon exceptions by plaintiff his answer was ruled out, whereupon he filed the following amended answer:
“And now comes the defendant and for answer saith, that at the time of executing said notes the said plaintiff and defendant entered into a contract by which the said plaintiff sold to said defendant four hundred acres of land, which is described in a bond herewith filed as a part of this answer, and marked A, and the said defendant paid to said plaintiff four hundred dollars, and executed the two notes now sued on. And defendant avers that it was mutually understood by the parties that the payment of the last note and execution of a good and valid deed in fee-simple were to be simultaneous acts, and were to be performed at the same time; that upon the said defendant paying the full amount of said notes the plaintiff was to make a good and sufficient title to the land mentioned in the said bond; that it was known to the plaintiff that there were some difficulties to prevent his then being able to make to the defendant a good and sufficient title, and he, said plaintiff, undertook and promissed to remove every difficulty so as to be able to perfect the same, which was and is in his power to do, but which he has and does fail to do. And defendant says that there is about twenty acres less in said tract than said plaintiff represented.
That defendant has always been willing, and has often offered said plaintiff to pay the money, if the said plaintiff would make the deed according to his contract, which plaintiff refused to do, to defendant's damage of five hundred dollars. And defendant now offers to pay whatever sum may be due on account of said notes, but protests that he ought not to be compelled to pay any interest since he made the said offer to pay, which was on the 18th of September, A. D. 1850, nor the costs of this suit.
Defendant further says that he is ready and willing to perform his part of said contract, but that plaintiff has and does refuse to perform his by making a good deed. He pleads said bond in reconvention, and says that by plaintiff's failure to procure and make the title according to their contract he has sustained damages to the amount of five hundred dollars, for which he prays judgment.
Wherefore, defendant prays for a judgment compelling said plaintiff to procure a good and sufficient deed in fee-simple for the said land, and for a reasonable deduction for whatever amount it shall contain less than four hundred acres; and for his damages aforesaid; and that said plaintiff be restrained from collecting said money until he complies with his said contract, and he prays for general relief.”
The condition of the bond was that, whereas the plaintiff “has sold to the aforesaid William Lawrence a certain tract or parcel of land being and lying in the county of Robertson and State aforesaid, and on the waters of Campbell's creek, being the place on which the said Simonton has formerly resided, and which is bounded as follows: By a tract of land on the east claimed by Wooten and Scott; on the south, by Wilson Reed's headright; on the west, by Campbell's labor; on the north, by A. T. Moss, and wholly by estimation contains four hundred acres: now if the said Theophilus Simonton shall make or cause to be made a good and sufficient title in fee-simple to the said William Lawrence when the said Lawrence shall make the following payments, viz: four hundred dollars in hand in property; two hundred dollars due next Christmas twelve months; and two hundred dollars due three years from this time, then the above obligation shall be void, otherwise, in full force and effect.”
To the sufficiency of this amended answer the defendant also excepted, and his exception was sustained; and the defendant declining to amend further, judgment was rendered for the plaintiff.
Lewis & Barber, for plaintiff in error.
This was a suit on two promissory notes given for a part of the purchase money of a tract of four hundred acres of land. The defendant's first answer was demurred out; he amended, and demurrer was...
To continue reading
Request your trial
-
Lemmon v. Hanley
...insufficient. They must plead an eviction or superior outstanding title in a third person. See Fortson v. Caldwell, 17 Tex. 627;Lawrence v. Simonton, 13 Tex. 220; Robinson v. McFadden, Id. 278. In the case of Randon v. Toby, 18 Curtis, 694, the court says, that a breach of warranty of title......
-
Tooke v. Bonds
...v. McReynolds, 20 Tex. 595;Cooper v. Singleton, 19 Tex. 260;Moreland v. Atchison, 19 Tex. 305;Taylor v. Johnson, 19 Tex. 352;Lawrence v. Simonton, 13 Tex. 220;Brock v. Southwick, 10 Tex. 65;Johnson v. Long, May, 1860, 27 Tex. 21. Nor did the court err in sustaining the exception to that par......
-
Adams v. Fidelity Lumber Co.
...W. 538; Rich v. Ferguson, 45 Tex. 396; Watson v. Cline, 42 S. W. 1037; Yates v. Buttrell, 63 Tex. Civ. App. 452, 132 S. W. 832; Lawrence v. Simonton, 13 Tex. 220; Wuest v. Moehrig, 24 Tex. Civ. App. 124, 57 S. W. 864; Tiffee v. Linsley, 10 Tex. Civ. App. 465, 32 S. W. Applying the rules lai......
-
Littlefield v. Tinsley
...to the vendee, at the time of the sale, and it was understood that he should take such title as the vendor could give. Ante, 76, 133; 13 Tex. 220;14 Tex. 629;19 Tex. 260, 351. In a suit upon a note given in payment for land, for which plaintiff has given defendant a bond, to make him a good......