M'Campbell v. McFaddin
| Decision Date | 05 June 1888 |
| Parties | McCAMPBELL <I>et al.</I> <I>v.</I> McFADDIN <I>et al.</I> |
| Court | Texas Supreme Court |
Suit for the specific performance of a written contract entered into on January 22, 1838, between W. H. McFaddin, of the first part, and Nathan Holbert and David Garner, of the second part. The original petition was filed by W. T. McCampbell and others, as heirs and assigns of Holbert and Garner, on June 8, 1885. General and special demurrers were sustained to the original and first supplemental petitions, and also to the trial amendment, after which a trial was had on defendants' cross-bill, resulting in a verdict and judgment in their favor, removing all clouds cast upon their title by plaintiffs' claim. Plaintiffs appeal.
A. J. Peeler and D. W. Doom, for appellants. Fisher, Townes & Walton and Hill & Walton, for appellees.
There are a number of errors assigned, but it will only be necessary to consider the second, which questions the correctness of the ruling of the court in sustaining appellees' demurrers to appellants' petitions. By the terms of the contract sued upon, W. H. McFaddin, in consideration that Nathan Holbert and David Garner would select as good vacant land as could be found, and locate his head-right league certificate upon it, pay all government dues and charges, and also pay McFaddin an additional sum of $50, he would convey one-half of the land to Holbert and Garner by quitclaim deed as soon as he should obtain a title. In the mean time Holbert and Garner were authorized "to enter upon the land, and hold it as their own property acquired by just and legal title." Appellants alleged in their petitions that Nathan Holbert and David Garner located the W. H. McFaddin certificate on the land in controversy, in Williamson county, on the 28th day of February, 1840, and returned the field-notes to the general land-office on 20th of December of that year; that they paid all government dues and other expenses, and paid to W. H. McFaddin the sum of $50; that the land upon which the location was made was vacant public domain of the state of Texas, subject to location; that the survey and return of certificate and field-notes to the general land-office appropriated the land; but that, on account of a supposed conflict with the Aguirre grant of 10 leagues, the commissioner of the general land-office refused and neglected to issue a patent to the land until the 21st day of July, 1884, when he, by virtue of the location made by Holbert and Garner, issued his letters patent to the same. By the express terms of the contract, McFaddin could not be required to convey the land until he obtained the title. Consequently suit to compel a conveyance could not have been brought until after the 21st day of July, 1884, and laches cannot be imputed to appellants on account of a failure to do so until a reasonable time after their cause of action accrued; and we are of opinion, under the circumstances of this case, that from the 21st day of July, 1884, to the 8th day of June, 1885, cannot be considered an unreasonable time in which to bring suit.
It is claimed by appellees that the contract is incomplete, not having been signed by all of the parties contemplated thereby, and that it is not mutual. The contract is signed by W. H. McFaddin and Nathan Holbert only. David Garner failed to sign it, but it was not necessary for him to do so. When one party to a written contract signs, and the other accepts it without signing, the one failing to sign is as fully bound as if he had signed, and, as consequence, is also entitled to its benefits to the same extent as if he had signed it. Martin v. Roberts, 57 Tex. 568, and authorities cited.
Appellees also claim that, by the terms of the contract, a personal trust devolved upon Nathan Holbert and David Garner, which appellants' petitions show they never performed. The only failure upon the part of Holbert and Garner to perform the contract, as shown by the petition, was in not obtaining a patent to the land; but this was averred to have occurred on account of the refusal of the commissioner of the general land-office to recognize the validity of the location. Nothing remained to be done except to pay the patent fees, and take the grant out of the office when it should be issued. This did not require the exercise of discretion or judgment, and was not a matter of personal trust...
To continue reading
Request your trial
-
Travelers Ins. Co. v. Gibson, 1910.
...be established by circumstantial evidence. Abeel v. Weil, 115 Tex. 490, 283 S.W. 769; Martin v. Roberts, 57 Tex. 564; Campbell v. McFadin, 71 Tex. 28, 9 S.W. 138; Clegg v. Brannan, 111 Tex. 367, 234 S.W. 1076; Johnson v. Tunstall (Tex.Com.App.) 25 S. W.2d 828; Houston Oil Co. v. Singleton (......
-
Humble Oil & Refining Co. v. Trapp
...not be of serious consequence in one character of case, whereas a delay for a short time may be so in another case. See Campbell v. McFaddin, 71 Tex. 28, 9 S.W. 138; Malakoff Gin Co. v. Riddlesperger, 108 Tex. 273, 192 S.W. 530; Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167; Murphy v. John......
-
Yeo v. Yeo
...until her cause of action matured on denial or repudiation of her interest in the military retirement benefits. See McCampbell v. McFaddin, 71 Tex. 28, 9 S.W. 138 (1888). It is clear that an inequitable result was reached. All the other property acquired during the marriage of appellant and......
-
American Freehold Land Mortg. Co. v. Pace
...they in no wise contemplated existed. Such issues would properly be questions of fact to be passed upon by the jury. In Campbell v. McFadin, 71 Tex. 32, 9 S. W. 138, and Reed v. West, 47 Tex. 248, which were actions in equity to enforce the specific performance of contracts, it is held that......