Mitchell v. Sheppard

• Citation: 13 Tex. 484
• Parties: ASA MITCHELL v. MARY SHEPPARD AND OTHERS.
• Decision Date: 01 January 1855
• Court: Supreme Court of Texas

13 Tex. 484

ASA MITCHELL

v.MARY SHEPPARD AND OTHERS.

Supreme Court of Texas.

1855.

Error from Montgomery. The plaintiff in error on the 8th January, 1852, instituted suit against Mary Sheppard, the widow and others, the heirs of W. W. Sheppard, deceased, on an agreement of the deceased, by which he bound himself under a penalty of four thousand dollars within twelve months from the date, which was the 21st November, 1844, to convey to the plaintiff in error, by good and sufficient deed with warranty, two tracts of land, one in the name of Smith and another in the name of House, original grantees, amounting altogether to 2,019 acres, the consideration of said agreement being $800, which the plaintiff promised to credit on a judgment held by him against the deceased.

Among other matters, it is averred that no good and sufficient deed of said tracts of land was ever made to the plaintiff, neither by Sheppard in his lifetime nor by any one since his death; nor has the said sum of four thousand dollars been paid; and it was further averred that the said Sheppard died without obtaining title to the eleven hundred and seven acre tract, “save mediately under his own sale, as administrator of Martin P. Clark, deceased.” And some averments were then made, which, by subsequent amendment, were stricken out. These were to the effect that Clark's title was not perfect; that subsequent to the agreement Sheppard had sold such portions of the other or Lemuel Smith as would prevent the plaintiff from getting the front and quality of lands agreed upon, without the hazard of a lawsuit with these subsequent purchasers, or those claiming under them; and it was further charged that the title of both tracts was doubtful, in consequence of the uncertain locality of the boundary line between Montgomery and Harris counties, and that this was well known to Sheppard at the time of the agreement.

These averments, as before said, were abandoned and stricken out by amendment. After some further allegations, the plaintiff prayed for specific performance provided the defendants could make a sufficient title to said tracts of land, and, if so, that they be decreed to execute conveyances conforming to the letter and in every particular with the terms and specifications of the agreement. But in case the said deceased did not have an indefeasible title to said lands, or, in case the defendants be not able to make good and sufficient title, then that he may recover judgment for the said sum of four thousand dollars; and, after praying for such other relief as he might be entitled to from the nature of his case, he introduces the allegation of a very important fact, viz: that he had given credit on the judgment for the amount of the said sum of eight hundred dollars.

The defendants demurred, and for special cause pleaded, among other matters, lapse of time and the statute of limitations.

The demurrer was sustained and the petition dismissed.

H. N. & M. M. Potter, for plaintiff in error. It would be singular for a court of equity to enforce the specific performance of a contract, not in writing, to convey land when but a part of the purchase money had been paid and the purchaser had taken possession, (Dugan v. Colville, 8 Tex. R., 126;) and yet refuse to require a party to convey, when he has bound himself to do so by a written contract under seal and received the purchase-money at the time of entering into the contract, or rather previous to the contract.

About six years elapsed between the time fixed by the contract for the conveyance of the land and the commencement of this suit. In the case of Estes v. Browning, 11 Tex. R., 237, this court decided that even after the lapse of fourteen years Browning's heirs might pay the balance of the purchase-money due on the contract of their ancestor, and enforce the specific performance of the contract.

P. W. Gray, for defendants in error. The amendment which struck out the allegations of the inability of the defendants to make title, it is believed, does not deprive the defendants of any benefit or advantage to be derived from their being on the record. (Coles v. Perry, 7 Tex. R., 141; Pridgin v. Strickland, 8 Tex. R., 427.)

Under the allegations of petition and prayer for perfect title to be decreed, it is plain that the defendants having no such title could not comply with the prayer, and the plaintiff's claim as a money demand was clearly barred. (Swenson v. Walker, 3 Tex. R., 93; McClenny v. McClenny & Floyd, 3 Tex. R., 193.)

Supposing, however, that the plaintiff were entitled to have demanded such a title as the defendants could give, such a special performance should not be decreed. 1st. By lapse of time and laches the plaintiff had lost his right to claim the aid of equity; and 2d, because of his laches and want of diligence other equities had arisen between the heirs and other parties, which equity will not disturb. (1 Madd. Ch., 415, 419, marg.; 2 Story Eq., sec., 771, 774; Michaud v. Girod, 4 How. U. S. R., 503 and cases cited; Whiteman v. Castlebury, 8 Tex. R., 442; DeCordova v. Smith, 9 Id., 129; De Witt v. Miller, Id., 239.)

The principles clearly decided and the doctrines advanced in these cases seem to sustain the decision in the case at bar. Under all the circumstances shown by the plaintiff himself there has been great laches in his action. More than six years had elapsed before he moved. Other rights among the heirs and rights connected with other claimants had accrued; family settlements made, and creditors' and purchasers' rights will be disturbed by the enforcement of a stale claim, which is not even alleged to have been registered. It is also observable that, though after the prayer of the petition had been framed, and at the very end, it is alleged that the plaintiff had performed his agreement by crediting the judgment for $800. Yet the time of that entry of credit is not then stated. This is a suspicious circumstance, in regard to which the plaintiff should have been more definite. He cannot claim the aid of equity without first doing equity. His hands should be clean of all suspicion of unfairness. A credit given on the eve of suit, after he had speculated on the chances of the enhanced value of the land, was not in equitable compliance with his contract. It does not appear that the plaintiff has been damaged by the failure of title, and he cannot justly complain if the court refuses to aid him now.

The facts in the original petition show that the plaintiff below was aware, when he brought suit, that the defendants, heirs of Sheppard, could not make title. In such case equity will not relieve him. (White & Tudor's leading cases in equity, vol. 2, pt. 2, Am. notes, Specific Performance.)

HEMPHILL, CH. J.

The plaintiff in error, in urging reasons for the reversal of the judgment, contends that all of the defendants were at least proper and some of them necessary parties, and that it would be clearly erroneous to dismiss on joint demurrer as to all of the defendants because some of them might not be proper parties. That some of the defendants, as, for instance, the heirs of Joseph House, were not, to say the least, necessary parties, is quite manifest. But it will not be necessary to examine the point as to misjoinder of parties, as we apprehend the petition was dismissed not on that ground, but for the want of sufficient matter in the allegations of the plaintiff. The judgment recites that the matters alleged by the plaintiff were not sufficient in law or equity to entitle him to the relief demanded, and it was therefore decreed that the demurrer be sustained. Our inquiry, then, will be as to the legal sufficiency of the matter set forth in the petition.

This suit, at least the relief prayed for, is double, viz: for specific performance, and if that be impossible, then for damages on the covenant of defendant. Both objects could not be embraced in one suit where law and equity are administered in different jurisdictions. A suit for specific performance in equity could not be converted into an action for damages on breach of the contract; at least this could not be done, unless in some special cases; and on the later authorities it seems doubtful whether it can be done at all. Dart, in his treatise on vendors, p. 459, says that at one time there was a floating idea in the profession that the court might award compensation for nonperformance in the event of the primary relief failing, but the contrary has been settled by modern decisions; citing Todd v. Gee, 17 Ves., 273; 5 Mylne & Craig, 1. This statement, as deduced from the authorities, is not altogether accurate. In the case of Todd v. Gee, Lord Elden says that, except in very special cases, it is not the course of proceeding in equity to file a bill for specific performance, praying in the alternative, if it cannot be performed, an issue or inquiry before the master, with a view to damages. The plaintiff must take that remedy at law; ...