Lewis Hearst's Heirs v. Robert Kuykendall's Heirs

• Decision Date: 01 January 1856
• Citation: 16 Tex. 327
• Parties: LEWIS HEARST'S HEIRS v. ROBERT KUYKENDALL'S HEIRS.
• Court: Texas Supreme Court

16 Tex. 327

LEWIS HEARST'S HEIRS

v.ROBERT KUYKENDALL'S HEIRS.

Supreme Court of Texas.

1856.

A suit for specific performance of an executory contract for the sale of land may be brought in the county where the defendant, or one of several defendants, resides. (This case arose under a former statute, but the court give the same construction to the present statute.) [9 Tex. 175, 504;12 Tex. 175;17 Tex. 170.]

Error from Matagorda. Tried before the Hon. Robert J. Townes.

Wilson & Quinan, for plaintiffs in error.

J. W. Harris, for defendants in error.

HEMPHILL, CH. J.

This was a suit by the heirs of Lewis Hearst against the wife of Robert Kuykendall, deceased, and his heirs, to compel the specific performance of a contract for the sale of land, or to secure a deed for lands previously purchased. The land was, at the commencement of the action, in Colorado county, but the suit was brought in Matagorda county, the wife of the deceased Kuykendall and an adult child being residents of that county, and also two minor children whose residence, until the contrary is shown, must be presumed to be that of their mother. Some of the heirs of Kuykendall were resident in other counties, one of them living in Colorado, where the land was situated.

There was a plea to the jurisdiction of the court, on the ground that the suit should have been brought in the county where the land is, viz.: the county of Colorado; and the plea being sustained, the suit was dismissed.

The only question is, whether a suit by a vendee, for specific performance, should be brought in the county where the land lies, or whether it may be brought in the county where the defendant, or one of the defendants, resides?

This suit was brought in 1840, and its venue must be determined by the provisions of the act establishing the jurisdiction and powers of the district courts, vol. 1, Laws of the Republic, p. 198. In the fifth section, it is declared that no person shall be sued out of the county in which he may reside, with ten exceptions, in no one of which it is declared positively that the suit must not be in the county where the defendant resides, except that as to a married woman she must answer in the county that is the residence of her husband, and where there are two or more defendants, residing in different counties, the suit may be in either county. The ninth exception relates to land, and is in these words, viz.: “in case where land is the object of the suit.” The extent and force of this exception will be the better comprehended by reading the rule in connection with the exception, and the provision would then read as follows, viz.: No person shall be sued out of the county in which he may reside, except in case where land is the object of the suit. Does this mean that he must be sued in the county where the land lies? It certainly does not. It means only that it is the privilege of the defendant to be sued in the county of his domicile; but where land is the object of the suit, the plaintiff has the privilege of suing him elsewhere.

The third exception in the same statute, in connection with the rule, is to the effect that no person shall be sued out of the county of...