Stillman v. Canales
| Decision Date | 01 January 1873 |
| Citation | 39 Tex. 406 |
| Parties | CHARLES STILLMAN v. MANUEL TREVINO CANALES. |
| Court | Texas Supreme Court |
1. A covenant in an executory contract for the sale of lands as follows: “It is, however, distinctly understood that said Canales grants and conveys herein to the said parties of the second part the before described lands only to the extent of the interest by the honorable ayuntamiento passed or granted,” does not call for paper titles, but only such title as was granted by the ayuntamiento, which may have been by parol.
2. A plea impeaching in part the consideration of an obligation to convey land should show and point out the particular part to which title has failed, and its proportional value.
3. The necessary affidavit to a plea impeaching the consideration of a contract, if made by an attorney, should be made upon his knowledge of the facts; or if from information, must state from whom he derives his knowledge, and he must state the plea to be true.
APPEAL from Cameron. Tried below before the Hon. Wm. H. Russell.
Canales originally brought his suit against the defendants, Stillman, Belden & Mussina, but by the non-residence of Mussina and the death of Belden, and the cause of action surviving against the defendant Stillman, he, by these circumstances, was left as the sole defendant.
The cause of action was a contract signed by the defendants on the thirtieth of January, 1849, for the sum of three thousand two hundred dollars ($3,200), payable to the plaintiff in three instalments, at six, twelve and eighteen months from date, in consideration of six certain labors of land lying within the limits of the city of Brownsville, sold and delivered by the plaintiff to the defendants; and in the contract were the following covenants:
The original petition was filed in 1850. In pursuance of an agreement of the parties, filed May 10, 1853, plaintiff filed an amended petition November 4, 1853, and the defendant an amended answer December 2, 1853, and the case was finally tried on these pleadings, which resulted in judgment for the plaintiff, from which defendant appealed to this court, when the judgment was reversed and the cause remanded. See 25 Tex. 313.
The answer of the defendant set up that the plaintiff in the covenant sued on had agreed to furnish certain title papers to some labors of land, which he had neglected to do, and that by that means defendant had suffered damages, etc., and that until such title papers were so furnished, he had no right to sue for the balance due on the said covenant.
After pleading certain payments, it was alleged that there remained a balance of $1,183.34 unpaid, “which said sum defendants are willing and ever have been willing to pay to said plaintiff when he complies with his covenants in the said deed contained.
They further say that plaintiff covenanted in said indenture that he was lawfully seized of all and each of the said granted tracts or labors, by the regular chain or transfer of title from the honorable ayuntamiento of the city of Matamoros; and it was further covenanted, that in case of failure on the part of the plaintiff to produce, furnish and assure to defendants perfect and complete transfer of title to all and each of said labors, then defendants might deduct from the payments by them to be made such sum as may be the proportional and relative value of the parcels so failed to be conveyed as compared with the whole six tracts conveyed. That they have often demanded of plaintiff a compliance and a performance of the conditions and covenants in said conveyance contained, and that he fails and refuses to comply with his said promises; that plaintiff has not furnished to them perfect and complete transfers and title papers to the labor or tract granted to plaintiff by said ayuntamiento; that he has totally failed to furnish and deliver to defendants any title papers whatever, or transfers of land; … that the said Manuel Trevino Canales labor is worth only one-sixth as much as the other remaining tracts aforesaid, when their relative value is taken into the account. Whereby, and in consequence of said acts of plaintiff, defendants have suffered damages in the amount of three thousand four hundred dollars.” ….
The plaintiff, on April 21, 1851, had filed exceptions to the sufficiency of the defendant's answer in alleging a non-fulfillment of covenant on the part of the petitioners to perfect and complete the title to the lands in the petition described in bar of the plaintiff's right to recover as prayed; because, for such plea to avail the defendants, they must disavow all claim to the land in question or so much thereof as title, by reason of such non-fulfillment, is alleged to be defective, and must, in and by their plea in such behalf, offer to return to the plaintiff such land, or so much thereof as by said defendant is disavowed to be of good and sufficient title to them under said covenant, which exception was again raised August 9, 1871.
The plaintiff also excepted to the plea of the failure of consideration by the defendants on the grounds, (1) Because the particular lacking titles are not specified, and (2) Because the said plea is not sworn to as required by law.
To meet this exception the defendant's attorney made an affidavit designed to take the place of a jurat to the plea of failure of consideration, and which, on motion of plaintiff, was struck out as insufficient. The affidavit is as follows:
“Personally appeared before me, the undersigned authority, T. E. Macmanus, attorney for defendant, Charles Stillman, who, being by me duly sworn, according to law, says that the answer of defendants herein filed, in so far as the same sets forth that the said plaintiff, Manuel T. Canales, failed and refused to comply with the covenants in the deed sued upon, is true, according to the information and belief of affiant, in this, that he did not furnish, produce and assure to the said defendants perfect and complete transfers of title to all and each of the said labors in the said deed described, and as therein covenanted to be furnished, produced and assured to said defendant; and affiant declares that the said plaintiff did fail and refuse to comply with the said covenants in the manner herein set forth, as affiant verily believes.
T. E. MACMANUS.
Affirmed to and subscribed before me, this tenth day of August, 1871.
R. B. FOSTER, Clerk,” etc.
The court sustained the plaintiff's exception to the defendant's plea of failure of consideration, and struck out so much of defendant's answer as embraced such plea.
The defendant then interposed a demurrer or exception to the plaintiff's petition, preceding...
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