Robinson v. Davenport

• Decision Date: 01 January 1874
• Citation: 40 Tex. 333
• Parties: A. C. ROBINSON v. WILLIAM DAVENPORT AND A. D. TINSLEY, INTERVENOR.
• Court: Texas Supreme Court

40 Tex. 333

A. C. ROBINSON

v.WILLIAM DAVENPORT AND A. D. TINSLEY, INTERVENOR.

Supreme Court of Texas.

1874.

1. In a suit for specific performance of a parol contract for the conveyance of land, a petition alleging payment of the purchase money, possession of the land by the plaintiff, and valuable improvements made thereon; and the further allegation that the defendant had refused to make title to the land in accordance with his contract; held, sufficient on general demurrer.

2. The effect of a general demurrer is to put in question the sufficiency of the facts alleged, not the manner of stating such facts.

3. When a charge of the court is complained of as being too general, but which is correct as far as it goes, the attention of the court below should be called to the point, so that the omission could be corrected, if proper.

4. The appellate court will not set aside a verdict where there is evidence to support it, and not sufficient preponderance against it to authorize this court to say the verdict is wrong, or against the law and evidence.

5. In an action for specific performance of a parol contract for the sale of land, where the facts warrant a decree for plaintiff, the court should decree title to plaintiff with warranty and without any act to be done by the defendant.

6. A recital by a party in a mortgage by him executed in 1865, and recorded, disclaiming homestead rights in a certain town lot, held not to estop such party in 1869, when residing thereon, from claiming homestead rights therein against a party buying at sheriff's sale who testified on the trial that he bought relying upon the representations in the said mortgage, the record of which he had read.

7. See facts held not to constitute an estoppel.

APPEAL from Rusk. Tried below before the Hon. J. B. Williamson.

The facts appear in the opinion.

James H. Jones, for appellant. Verbal contracts for the sale of land must, in their terms, be certain and unambiguous. Bracken v. Hambrick, 25 Tex. 408. It is not averred that appellant undertook or contracted to make title to the lot, at any time or at all, in appellee's petition, but it is said by appellee that this defect in the petition is cured by appellant's answer. The language of appellant in his second amended answer, to which appellee refers, is, “And it was then and there expressly agreed and understood between said Davenport and defendant that the said defendant was not to make, or the said Davenport to demand, a title to said lot of land sued for till each and all of said notes was collected,” etc., and this averment is part of the history of a contract essentially different from the one set out in appellee's petition.

Contracts, and especially verbal contracts, for the sale of land cannot be so easily divided and garbled to suit the convenience of one party. It is nowhere averred in appellant's answers that he agreed to make title upon the payments to him of one thousand dollars in cash notes on good and solvent men. The authorities referred to by appellee in his brief do not apply, because these questions were not decided in them. Blount v. Ralston, 10 Tex. 133; Neatherly v. Ripley, 21 Tex. 434;Hill v. George, 5 Tex. 89. This last authority would be good law in a proper case, but defendant did not expressly aver or confess the material fact omitted in appellee's petition. Courts will not make for parties a new contract to which they have not given their assent. Roberts v. Lovejoy, 25 Tex. S. 441. Verbal contracts for the sale of land should be wanting in nothing; they should be complete and certain, and the rights and duties of both parties should be clearly expressed and agreed to, or courts of equity will not enforce them. Roberts v. Lovejoy, 25 Tex. S. 441; Bracken v. Hambrick, 25 Tex. 408. If these authorities are good, how can a court require a party to warrant title to land when it is not alleged or proved that he undertook or agreed to warrant the title?

N. S. Bagley, for intervenor, Tinsley. The acts and representations of any party made to deceive, and which do deceive others, to their injury, will be binding upon them, and they will be estopped, they and all parties privies thereto, by deed or in blood. 1 Greenl. Ev. p. 83, secs. 22, 23.

The above doctrine is so universal that it is held to apply with all its force against even a married woman and infants. 9 Tex. 297; also 9 Tex. 285.

It will be perceived from the above authorities, though few in number, that the law will not permit a party to be defrauded by the acts of other parties, and injured by being induced to purchase property, and then allow them to take the advantage of their own wrongful act and claim the property, although it may be the homestead.

Casey & Blanton, for appellees, cited Blount v. Ralston, 20 Tex. 133, Neatherly v. Ripley, 21 Tex. 433; Hill v. George, 5 Tex. 89;Wright v. Donnell, 34 Tex. 305;Boetge v. Landa, 22 Tex. 107;McGehee v. Shafer, 9 Tex. 24.

M. D. Ector and Long & Long, for appellees. 1. It has been decided by this court in a number of cases that when a vendee in a parol agreement goes into possession, makes valuable improvements, and pays the purchase money, he is entitled in equity to a decree for specific performance, and not for value of improvements, unless the vendor is unable to make title. Reynolds v. Johnston, 13 Tex. 214;Dugan's Heirs v. Colville's Heirs, 8 Tex. 128;Neatherly v. Ripley, 21 Tex. 434.

2. If Robinson contracted to sell the said lot for cash notes with Davenport's indorsement thereon, and Davenport paid him said notes and indorsed them, his children are entitled to the property.

Again: If Robinson contracted to sell the property to Davenport for cash notes, with Davenport's indorsement on same, he has no lien on said lot for the payment of said notes, or any part thereof.

Taking the responsibility of a third person is evidence that the seller did not repose upon the lien, but upon independent security, and it discharges the lien. Parker County v. Sewell, 24 Tex. 238; Brown v. Gilman, 4 Wheat. 201.

The lien is waived where a note or bond is taken of vendee for purchase money, in which a third person joins as security. Fish v. Howland, 1 Paige, 20;Johnson v. Suggs, 13 Smedes & M. 346; Francis v. Haydring's Executors, Hardm. 48, citing 2 Wash. 144;McClure v. Harris, 12 B. Mon. 265;Marshall v. Christmas, 3 Humph. 617;Vail v. Foster, 4 Comst. 312;Autrey v. Whitmore, 31 Tex. 624. It is a well settled principle of equity that he who having a vendor's lien takes any other security than that which equity gives him on the land sold, is held thereby to waive the vendor's lien. 3 Long, Vendors, 123; Boos v. Ewing, 17 Ohio, 500.

Any act of the vendor which shows any intention to release the land will divest the lien. The English courts of equity lay down the true rule: Did the vendor intend to trust to the estate as his security, or did he intend to abandon that and rely on something else? If he relied on his estate, he retains his lien; if he did not, but took security on other property, or from some other person, he has lost it. 16 Ves. 348; Wasson v. Davis, 34 Tex. 159. The vendor may waive his lien by taking personal security for the purchase money, or by taking a chattel mortgage, an assignment of collateral, or a mortgage on other real estate, as security therefor. 35 Tex. 689.

3. The ground upon which the estoppel proceeds is fraud, actual or constructive, on the part of the person sought to be estopped. What will amount to the suggestion of a falsehood or the suppression of the truth may be difficult to determine in all cases; but some turpitude, some inexcusable wrong, that constituted the direct motive, or induced the outlay or purchase, is necessary to give silence or acquiescence the force of estoppel in pais; ignorance of the true state of the title on the part of the purchaser must concur with willful misrepresentation or concealment on the part of the party estopped. 1 Gill, 430;Burleson v. Burleson, 28 Tex. 414; Bogges v. Merced, 14 Cal. 637; Page v. Arnim, 29 Tex. 72.

As the effect of an estoppel may be to shut out the real truth by its artificial representative, estoppels, whether at law or in equity, are not to be favored nor extended by construction. Jones v. Loper, 1 Dev. & B. 464.

A recital does not operate as an estoppel in an action by another party, not founded on the deed, and wholly collateral to it. Carpenter v. Butler, 8 Mees. & W. 209.

An estoppel must be reciprocal, and a stranger can neither take advantage of nor be bound by the estoppel. Averill v. Wilson, 4 Bart. 180.

An estoppel by deed extends only to parties and privies thereto, and not to strangers. Cottle v. Sydnor, 10 Miss. 763; Braintree v. Hingham, 17 Mass. 432;Worcester v Green, 2 Pick. 425; Griggs v. Smith, 7 Hals. 22.

An estoppel can only be asserted or pleaded by one who was affected by the act which constitutes the estoppel. Miles v. Miles, 8 Watts & S. 135.

One who is not bound by, cannot take advantage of an estoppel. It must be reciprocal and certain to every intent. Borling v. Mayer, 3 Rand. 563; Lansing v. Montgom ery, 2 Johns. 382.

Before a party is held to be thus ( i. e., by estoppel of deed) concluded, it must appear, (1) that he has made an omission which is clearly inconsistent with the evidence which he proposes to give; (2) that the other party has acted upon the admission; and (3) that the latter will be injured by allowing the truth of the admission to be sustained. Dezell v. Odell, 3 Hill, 215.

REEVES, ASSOCIATE JUSTICE.

This was a suit to enforce specific performance of a parol contract for the sale and purchase of a lot of ground in the town of Henderson, Rusk county. The suit was brought by Davenport, and alleges a purchase from Robinson in 1860, describing the lot by its number and block. The petition states the agreement, alleging that Davenport paid Robinson one thousand dollars in cash notes on good and solvent men as the consideration for the...