Primm v. Barton

• Decision Date: 01 January 1856
• Citation: 18 Tex. 206
• Parties: WILLIAM PRIMM v. WILFORD BARTON.
• Court: Texas Supreme Court

18 Tex. 206

WILLIAM PRIMM

v.WILFORD BARTON.

Supreme Court of Texas.

1856.

The husband has authority, as survivor of the connubial partnership, where there is no administration upon the wife's estate, to fulfil all contracts respecting the common property, entered into by himself alone or jointly with the wife before her death; and where the heir of the wife sought to set aside a conveyance of the surviving husband, which was made in pursuance of such prior agreement by the husband and wife, on the ground that the contract had been forfeited by the obligee, and become null during the life of the wife, it was held that he must make strict proof.

Bond of husband and wife, dated December, 1835, to convey their headright league for the price of six thousand dollars, to wit: five hundred dollars in hand; two thousand dollars in January, 1837, and three thousand five hundred dollars in twelve months thereafter; the title to be made upon receipt of the two thousand dollars, as aforesaid; and if so made, this obligation to be void, etc.; wife died in 1837; in 1839 conveyance of same land by the surviving husband to the obligee in the bond for the price of six thousand dollars, but without any allusion to the bond or prior agreement to sell the land; the cause being submitted on said facts, it was presumed that the conveyance was made in discharge of the bond, and not that the first contract was abandoned, although it appeared, but not very distinctly how, that possession was delivered with the bond, and that the husband and wife had re-entered in 1837, shortly before her death.

Quere,where the surviving husband, in conformity with the original stipulations of a contract for the sale of real estate belonging to the community, made in the wife's lifetime, without any evidence of fraud, or of positive injury to the heirs of the wife, makes a conveyance, whether such act should be held new contract in such sense as not to be binding on the heirs of the deceased wife, although the original contract had been forfeited before the wife's death, by failure of the vendee to comply with its conditions.

See this case for circumstances under which it was held that it did not appear that time was of the essence of a contract for the sale of land, nor that the purchaser had made such default as forfeited his right to a conveyance.

Appeal from Fayette. Tried below before the Hon. Thomas H. DuVal.

Suit

by appellee against appellant, commenced January 23d, 1854, to recover in right of his mother, Stacy Barton, one-half of the headright league of his father, William Barton.

A jury was waived, and the cause submitted to court upon the following admissions and statement of facts. The plaintiff admits:

1st. The execution of the title bond, on file, executed by his father and mother, William and Stacy Barton, on the day and year therein specified, and the land therein mentioned is the land in controversy in this suit.

2d. That the said Barton delivered not only constructive, but actual possession of the said land to the said Primm, at the time of the execution of the said bond, and that Primm paid the said Barton five hundred dollars at the same time.

3d. That the deed of Barton to Primm to said land, and now on file, was not only duly executed at the time and on the day and year it bears date, but that said Primm paid all the consideration money therein mentioned at the same time.

And the defendant Primm agrees to and admits:

1st. That the land sued for in this action was the headright granted to said William Barton as a colonist in 1831. That the grant was made and the land acquired during the coverture of said William and Stacy Barton.

2d. That the plaintiff is the son and only heir of the said William and Stacy Barton, and that he was born on the--day of July, 1831.

3d. That the said Stacy Barton, the mother of the said plaintiff, died on the--day of April, 1837.

4th. That the community property of the said William and Stacy Barton, was unencumbered with debts or liabilities of any description, at the time of the death of the said Stacy Barton, so far as this defendant knows.

5th. That the said William Barton was in actual possession of the said tract of land and cultivated a crop on the same during the year 1837, at the close of which year (1837) the said Primm had made no payment on said land except the sum of five hundred dollars paid at the time of the execution of said title bond, and that said Barton moved off of said land in 1837.

6th. That said Primm is now in possession of said land and has been ever since the 18th day of April, 1839, and that the rents and profits, use and occupation of the same, has been worth the sum of one thousand dollars per annum since the 18th day of April, 1839.

7th. That the papers on file in this cause, except the petitions and answers, together with their indorsements, may be considered in evidence before the court.

The title bond from Barton and wife to Primm, was as follows:

Know all men by these presents, that we, William Barton and Stacy Barton, of the municipality of Bastrop, otherwise Mina, in the state or province of Texas, are held and firmly bound to William Primm, at present a citizen of the parish of Concordia in the state of Louisiana, in the full and just sum of twenty thousand dollars, lawful money of the state or province of Texas as aforesaid, to be paid unto the said Primm, his certain attorney, his heirs, executors, administrators or assigns; to which payment, well and truly to be made, we bind ourselves and each of our joint and several heirs, executors and administrators, firmly by these presents: sealed with our seals, and dated the 18th day of December, in the year of our Lord, one thousand eight hundred and thirty-five.

The condition of the above obligation is such, that whereas the above bound William Barton and Stacy, his wife, have this day, for the consideration hereinafter mentioned, to wit: six thousand dollars to be paid as follows, viz.: five hundred dollars in hand; two thousand dollars in January, one thousand eight hundred and thirty-seven; and three thousand five hundred dollars in twelve months thereafter; have granted, bargained, sold, and possession given to the aforesaid William Primm, a certain lot of land containing one full league, situated, lying and being in Austin's colony, on the west bank of the Colorado river, and in the municipality and state aforesaid, and bounded east by the aforesaid river, and on all other sides by private and public lands; together with all its appurtenances, rights, issues, privileges, immunities, etc., whatsoever belonging thereunto; it being the lot or league No. ____, and that which was granted to the above bound parties by the Mexican government in virtue of their head and settlement right, and the lot upon which they now hold their residence. The conditions of which having been fully complied with by the above bound parties; which lot or league of land together with its appurtenances, etc., as aforesaid, they, the above bound William Barton and Stacy Barton, do, by virtue of the above obligation, bind themselves and each of their joint and several heirs, executors, and administrators, to make or cause to be made to the aforesaid William Primm, his certain attorney, his heirs, executors, administrators or assigns, upon the receipt of the two thousand dollars aforesaid, a good and sufficient deed of conveyance, according to the laws and usages of the Mexican government, or with whatever government and laws may be in use at the time when the aforesaid conveyance shall be made.

Now, therefore, if the above bound William Barton and Stacy Barton, his wife, their heirs, executors or administrators, shall well and faithfully make and execute, or cause to be made or executed, to the aforesaid William Primm, his certain attorney, his heirs, executors, administrators, or assigns, upon the receipt of the two thousand dollars aforesaid, a good and sufficient title to and for the above-mentioned and described lot, or league of land, according to the laws and usages aforesaid, then the above obligation to be void, otherwise to remain in full force and effect. (Witnessed, signed and sealed.)

This bond was proved and recorded after this suit was commenced. The deed from Barton to Primm, in 1839, was as follows:

This indenture made this, the 18th day of April, in the year of our Lord 1839, between William Barton, of the county of Bastrop and republic of Texas, of the first part, and William Primm, of the county of Fayette and republic aforesaid, of the second part, witnesseth that the said party of the first part, for and in consideration of the sum of six thousand dollars, to him in hand paid and secured by the party of the second part, hath given, granted, bargained, sold, alienated, enfeoffed, conveyed and confirmed, and by these presents, doth give, grant, bargain, sell, alien, enfeoff, convey and confirm unto the said party of the second part, his heirs and assigns, the league of land No. 9 (nine) on the west side of the Colorado river, in the county of Fayette, known as the headright league of said William Barton, together with all and singular hereditaments and appurtenances to the same belonging or appertaining; to have and to hold the aforesaid league of land, with all and singular its hereditaments and premises, unto the said William Primm, his heirs and assigns forever, to his and their only proper use and behoof. And I, the said William Barton, all and singular the league of land aforesaid, its hereditaments, appurtenances and premises unto the said William Primm, his heirs and assigns, against me, the said William Barton, my heirs and assigns and against all, every person and persons whomsoever, shall and will warrant, and forever warrant and defend by these presents.

In witness, etc. (Witnessed, signed and sealed.)

This deed was acknowledged next day after its date, and was recorded March 9th, 1840....