Perry v. Rice

• Decision Date: 01 January 1853
• Citation: 10 Tex. 367
• Parties: PERRY v. RICE AND OTHERS.
• Court: Texas Supreme Court

10 Tex. 367

PERRY

v.RICE AND OTHERS.

Supreme Court of Texas.

1853.

Where exceptions to the answer are overruled, it is not necessary for the plaintiff to amend, nor is it proper to render judgment for the defendant; but the case should go to the jury on the issues of fact.

Covenants in a bond or other agreement for the sale of land are to be construed as other contracts, according to the manifest intention of the parties. There are no particular words the use of which will make a stipulation a condition precedent or subsequent; but there are certain rules which have been adopted by which to ascertain the intention of the parties.

Where the stipulations of a bond for title were that the conveyance should be made “when the purchase-money shall have been paid, or when a patent to the land shall have been obtained,” and a note was given for the purchase-money, payable at a day certain, it was said that the making of the title was not a condition precedent to the payment of the purchase-money. (Note 71.)

It is the settled doctrine in England, and, I presume, in most of the common-law courts in this country, that if the purchaser give a bill of exchange or other security for the purchase-money, payable at a certain day, he must pay it when due, and cannot resist the payment, even in the case of a bill of exchange, on the ground that there was no consideration for the drawing of the bill, because the seller has refused to convey the estate according to the agreement. But he will have his remedy upon the agreement for the non-execution of the conveyance. Repeated decisions of this court, however, have recognized a different doctrine, upon the principle that our law discountenances circuity of actions and a multiplicity of suits, and will enable the parties to litigate all the matters in controversy between them, respecting the same subject matter, in one suit.

In declaring upon a promissory note given for the purchase-money for land, it is not incumbent on the plaintiff to set forth the consideration of the note and aver a performance of his agreement to convey. But if no note or other security is given, and the agreement consists of dependent covenants, in an action for the purchase-money the plaintiff must aver and prove a conveyance, or at least a readiness to convey; and, according to the practice in this country, which is different from the English practice, the party who is to make the conveyance must prepare it.

An action for the purchase-money of land, whether brought upon a note or the covenants in a contract of bargain and sale, produces the same fruit as a bill in equity; but the evidence is admissible only under appropriate averments, setting forth truly the facts on which the rights and equities of the parties depend.

A vendee who resists the payment of the purchase-money on the ground of a defect of title must allege and, by competent and sufficient evidence, establish the existence and validity of the outstanding title. And this, too, it seems, although the contract of sale be executory, not executed. (Note 72.)

A vendee who resists the payment of the purchase-money on the ground that the vendor has failed to convey according to agreement, should aver such facts as show the vendor to be in default.

Appeal from Cass. The appellant brought suit against the appellees on a promissory note, alleging that the note was given for a valuable consideration, to wit, for a certain tract of land, &c.

The defendants first pleaded certain payments. They afterwards filed an answer admitting the giving of the note for the consideration stated in the petition, but averring that the defendant obligated himself, in consideration of the giving of the note, to make to the defendants a good and sufficient warranty title to the land, as would appear by his bond bearing even date with the note filed with the answer and made a part of it, and they submitted to the court that the payment of the money and the execution of the deed are mutual and dependent covenants. They further averred that “they purchased the land for the purpose of erecting a saw-mill thereon; that while working upon the land they were forbidden to cut timber by one Ussry, who claimed the same as agent for some other person or persons whose names are not known; and the defendants further state that they have been informed and therefore charge to be true that the plaintiff has not the title, and that he has not made any exertions to get a title.” They further alleged that the plaintiff's solvency was not known to them, and that they were unwilling to rely on him to refund in damages, in case he should be found unable to comply with his bond. Wherefore they prayed that the plaintiff be required to elect either to have both note and bond canceled, and refund the money paid upon the note, or that he comply specifically with his covenant in said bond, and until he shall make the election, “and in case he shall choose to make a good and sufficient deed, that he be enjoined to recover on said note.”

The bond referred to in the answer was a penal bond for the sum of twelve hundred dollars. It recited that “the above bound William Perry has this day, for and in consideration of the sum of six hundred dollars, for which said Rice, Peters, and Hays have executed their promissory note of even date herewith, due twelve months after date, sold, aliened, and conveyed unto the said Rice, Peters, and Hays,” the tract of land, describing it, and concluding with the following condition: “Now, therefore, in case the said Perry shall make or cause to be made unto the said Rice, Peters, and Hays, their heirs and assigns, a good warranty title deed to said land sold as aforesaid when the purchase-money shall have been paid, or when a patent to said land shall have been obtained from the government, then the foregoing obligation shall be null,” &c. “And it is agreed that said land shall stand bound for the payment of the purchase-money.”

The plaintiff excepted to the legal sufficiency of the answer. The court overruled the exceptions, and gave the plaintiff leave to amend, and the amendment not being filed within the time given by the court (five minutes) dismissed the case. The plaintiff appealed.

J. W. Ferris, for appellant. I contend that the covenants in said bond are independent covenants, and that the payment of the purchase-money was a condition precedent. (Craddock, &c., v. Aldridge, 2 Bibb R., 15; Goldsborough v. Orr, 8 Wheaton, 217; Slocum & Hogan v. Despard, 8 Wend. R., 615; Weaver v. Childress, 3 Stewart, 361; Browning v. Estis, 3 Tex. R., 463.)

2d. The answer of defendants discloses that they went into possession of the land. It alleges “while working upon said land they were forbidden to cut timber,” &c. They do not show that they were ever turned out of possession, nor do they offer to restore possession to plaintiff. “It is repugnant to the plainest principles of law and justice to allow a defense to be heard whilst the vendee holds on to the bond and continues in the possession of the land purchased.” (11 Mart. R., 615; 4 Tex. R., 437.)

WHEELER, J.

It might suffice, for the present disposition of the case, to observe that the petition sets forth a good cause of action. It describes the note, and adds that it was given in consideration for certain land; but it does not refer to the bond for title, nor does it disclose the fact that there was such a bond or any executory contract respecting the consideration of the note to be performed by the plaintiff. The bond is made a part of the answer but not of the petition. The legal sufficiency of the petition was not questioned by the defendants, nor did it admit of a question. The court manifestly erred in adjudging it insufficient,...