Taylor v. Rowland

• Decision Date: 01 January 1862
• Citation: 26 Tex. 293
• Parties: P. TAYLOR AND OTHERS v. R. H. ROWLAND.
• Court: Texas Supreme Court

26 Tex. 293

P. TAYLOR AND OTHERS

v.R. H. ROWLAND.

Supreme Court of Texas.

1862.

A specific performance of a parol contract for the conveyance of lands will be enforced when the plaintiff proves performance of the contract on his part.[8 Tex. 126;11 Id. 87;15 Id. 50;28 Id. 247.]

And when it is shown in such action that the defendants have not the ability to make title according to their agreement, the plaintiff is entitled to compensation in damages for the injury occasioned him by the failure of the defendants to fulfill their undertaking.

The statute of limitations did not begin to run against the cause of action until the refusal of the defendants to make title, up to which time the plaintiff was ignorant of the inability of the defendants to convey title; and two years not having elapsed after the refusal of the defendants up to the institution of the suit, held, that the action was not barred.

Where it appears on the face of the petition that one of the defendants was a minor, and his guardian (if any he had) was not made a defendant, nor was there a guardian ad litem appointed for him, it was error to render judgment against such minor defendant; and this court will reverse the judgment for such error, notwithstanding no exception on this ground was taken in the court below or in the assignment of errors.

To charge heirs in damages for a breach of contract by their ancestor, the plaintiff should aver and prove that the estate of the ancestor is not in process of administration, and that assets had come into the hands of the heirs.

ERROR from Dallas. Tried below before the Hon. N. M. Burford.

This was a suit brought by Rowland, the defendant in error, against Pleasant Taylor and the heirs of William Taylor, deceased, for the specific performance of a parol agreement for the conveyance of land.

The petition was filed June 24, 1858, and set forth a verbal agreement entered into in May or June, 1854, by which Pleasant and William Taylor, representing themselves as the owners of a tract of land in Dallas county, comprising a good mill seat, induced the plaintiff to erect a mill thereon, and engaged, in consideration of his so doing, to make him a good title to the mill seat, including three acres of adjoining land.The petition averred the erection of the mill by plaintiff within ten months after the agreement, a survey of the premises by consent of both parties with a view to the conveyance of title, frequent demands of title by the plaintiff, and refusals by the Taylors.In an amended petition, the plaintiff alleged that the Taylors always professed willingness to make the title up to the fall of 1857; at which time, it appears from the evidence, the plaintiff for the first time learned that the title to the land was not in the Taylors, but in other parties.

The petition alleged that Newton Taylor, one of the heirs and defendants, was a minor; of which fact no further notice is taken in the record.

Besides a general denial, a parol release and a demurrer, the defendants pleaded the statute of limitations of two years.

Verdict and judgment for plaintiff for four hundred dollars.

G. W. Guess, for plaintiff in error.

E. P. Nicholson, for defendants in error.

WHEELER, C. J.

On the authority of repeated decisions of this court, we think it must be held that the plaintiff was entitled to maintain his action for specific performance of the...