Perry v. Smith

• Decision Date: 01 June 1921
• Docket Number: (No. 165-3164.)
• Citation: 231 S.W. 340
• Parties: PERRY v. SMITH et al.
• Court: Texas Supreme Court

231 S.W. 340

PERRY v. SMITH et al.

(No. 165-3164.)

Commission of Appeals of Texas, Section B.

June 1, 1921.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by L. H. Perry against Sidney Smith and others. From a judgment of the Court of Civil Appeals (198 S. W. 1013) affirming a judgment of the trial court, the plaintiff brings error. Reversed and rendered.

W. W. Moores, of Stephenville, for plaintiff in error.

Pittman & Taylor and J. A. Johnson, all of Stephenville, for defendants in error.

McCLENDON, P. J.

On November 12, 1912, S. N. Keith and wife conveyed, for the recited cash consideration of $10, unto Sidney Smith, three acres of land in Erath county, subject to certain conditions, among which were that two acres of the land were to be used by the grantee for gin and mill purposes only, upon which the grantee was to erect a gin and mill building of certain capacity and within a certain time, and providing that, if for any cause the gin and mill be not erected or cease operation on said premises, the land thereby conveyed should revert to the grantors. Smith went into possession, and in January, 1913, made a contract with Higginbotham Company to construct the improvements required under the deed, for which a mechanic's lien was given. In May, 1914, Smith and wife conveyed the land and improvements to Higginbotham Company, in consideration of the debt thus created, which company in turn sold the land to one Holt. The condition for keeping the gin and mill in operation was breached, and after the breach, but before re-entry, on April 1, 1915, Keith and wife conveyed the land to L. H. Perry. This suit was brought by Perry against Smith and his vendees in trespass to try title to recover the land conveyed, upon the ground that the title had reverted to Keith and wife, and that Perry by his deed from the latter had succeeded to their rights. The cause was tried in the district court without a jury, and judgment was rendered for defendants, the court finding that the conditions above named had been broken, but that Keith had waived his right to insist upon the condition on account of having known of the execution of the mechanic's lien to Higginbotham Company and having verbally consented to its being placed upon the land. The Court of Civil Appeals affirmed this judgment, upon the holding that the right of re-entry after condition subsequent broken is not assignable, and therefore no title passed by the conveyance from Keith and wife to Perry. 198 S. W. 1013.

The case presents two questions for determination: First, whether the trial court's holding that the condition in the deed was waived is supported by the evidence; and, second, whether the English common-law doctrine that the right of re-entry after condition subsequent broken is not assignable is in force in this state.

The only testimony tending to show a waiver of the conditions in the deed is to the effect that after the execution of the deed, and before the improvements were put upon the property, Keith knew of and consented to the placing of a mechanic's lien thereon. We are unable to conclude that such fact amounted to a waiver of the condition. There is no intimation that Keith agreed that the condition would not be insisted upon, or that the lien should be other than subordinate to the title acquired by Smith under his conveyance. At the time this lien was created, no breach of the condition had occurred, and the debt secured by the lien was incurred for the purpose of carrying out the terms of the condition. Higginbotham Company and those claiming under it were charged with knowledge of the conditions in the grant to Smith, and its lien upon the real estate was subject to be defeated by a breach of the same condition which would defeat the title acquired by Smith under his deed. The bare fact of knowledge of and consent to a lien upon the property would not, in our opinion, amount to an estoppel or waiver, in so far as conditions not then broken were concerned.

The second question presents no little difficulty. The Court of Civil Appeals has correctly announced the rule under the English common law. Whether that doctrine is in force in this state under the act of 1840, which makes the common law of England the rule of decision in this state, is a question requiring an examination not only into the common-law rule, but into its basis and its applicability to our system of jurisprudence as applied to lands and interest therein. The particular question of the assignability of the right of re-entry after condition subsequent broken has never been presented to the Supreme Court of this state in a case where the question was necessary to a decision, in so far as we have been able to find.

The doctrine of the nonassignability of titles or interests in lands, not in the actual possession of the grantor, has been quite generally by jurists and text-writers ascribed to a dislike for maintenance. As expressed by Coke:

"The reason hereof is for the avoiding of maintenance, suppression of right, and stirring up of suits, and therefore nothing in action, entire or re-entire, can be granted over; for so under colour thereof pretended titles might be granted to great men whereby right might be trodden downe and the weake oppressed, which the common law forbiddeth as men to grant before they be in possession." Coke on Littleton, 213b.

Lord Mansfield says:

"Our ancestors got into very odd notions on these subjects, and were induced by particular causes to make estates grow out of wrongful acts. The reason was the prodigious jealousy the law always had of permitting rights to be transferred from one man to another, lest the poorer should be harassed by rights being transferred to more powerful persons."

During the reigns of Edward I and Edward III repeated statutes were passed against maintenance and champerty, "which arose from the embarrassments which attended the administration of justice in those turbulent times, from dangerous influences and oppression of men of power." 4 Kent's Com. p. 514.

By the Statute of 32 Henry VIII, c. 9, entitled "The Bill of Bracery and Buying of Titles," any one selling or buying a title to property of which for the preceding year he or those under whom he claimed, had not either been in possession or received the rents, was subjected to the penalty of forfeiting the value of the lands, one half to the crown and the other half to the informer; an exception being made were one in possession purchased an outstanding adverse title or claim. Introductory to this statute is a recital of conditions which brought forth its enactment, as follows:

"The King, our sovereign lord, calling to his most blessed remembrance that there is nothing within this realm that conserveth his loving subjects in more quietness, rest, peace, and good concord than the due and just ministration of his laws, and the true and indifferent trials of such titles and issues, as been to be tried according to the laws of this realm, which his most royal majesty perceiveth to be greatly hindered and letted by maintenance, embracery, champerty, subordination of witnesses, sinister labour, buying of titles, and pretensed rights of persons not being in possession, whereupon great perjury hath ensued, and much inquietness, oppression, vexation, troubles, wrongs and disinheritance hath followed among his most loving subjects, to the great displeasure of Almighty God, the discontentation of his majesty, and to the great hindrance and let of justice within this his realm, for the avoiding of all which misdemeanors, and buying of titles and pretensed rights, and to the intent that justice may be more fully and indifferently ministered, and the truth in causes of contention plainly tried between his subjects of this realm; be it enacted, etc."

Lord Coleridge, in referring to the period of English history in which these statutes were passed, says:

"It may be that the danger of the oppression of poor men by rich men, through the means of legal proceedings, was great and pressing; so that the judges of those days, wisely according to the facts of those days, took strict views on the subject of maintenance." Badlaugh v. Newdegate, 1 Q. B. D. 7.

But, independently of these statutes, it is no doubt correct that at common law titles and interests in lands were not assignable, unless the grantor was in possession. This doctrine is usually ascribed to practices of the feudal system, under which livery of seizin "delivery of corporeal possession of the land or tenement * * * was held absolutely necessary to complete the donation." 2 Blackstone's Com. 311. Modern scholars, however, have rejected this explanation, assigning as the true basis of the doctrine the fact that our Anglo-Saxon forbears had no mental conception of title as separate from the subject of title, and consequently mere rights as distinguished from things were not the subject of contract. This view is ably maintained by Prof. Maitland in an article entitled "The Mystery of Seisen." 2 L. Q. Rev. 495.

Whatever view may be taken of the origin of or reasons for the general doctrine of non-assignability of titles to or interests in lands not in possession of the grantor, it is quite clear that none...