Todd v. Caldwell

• Decision Date: 01 January 1853
• Citation: 10 Tex. 236
• Parties: TODD AND OTHERS v. CALDWELL AND OTHERS.
• Court: Texas Supreme Court

10 Tex. 236

TODD AND OTHERS

v.CALDWELL AND OTHERS.

Supreme Court of Texas.

1853.

Where the vendee, in an executory contract for the sale of land, fails to pay the purchase-money at the time stipulated, and especially where he has given a draft for the purchase-money on a person in whose hands he has no funds, and the draft has not been paid, the vendor may elect to abandon the contract; and this, too, in the latter case, although the draft may have been indorsed to a creditor of the vendor, to be credited when paid; and where the vendor has so elected to abandon the contract, it cannot be sustained or resuscitated by any agreement between the vendee and the creditor of the vendor, to whom the draft was indorsed.

The probate court has jurisdiction (Hart. Dig., art. 1162) to decree the specific performance of executory contracts of a decedent for the sale of land; but any person interested in the estate may, at any time within two years after the making of any such decree, have the same annulled and set aside by a suit in the District Court, upon good cause shown why the same should not have been made in the first instance.

That time is of the essence of the contract, may or may not be true in reference to the facts in a given case. It has been well said that “if the thing sold be of greater or less value, according to the efflux of time, it is manifest that time is of the essence of the contract, and a stipulation as to time must then be literally complied with in equity, as well as in law.”

It is deemed unnecessary to enter upon a critical examination of the charge of the court. In its application to the facts of the case, it was substantially correct.

Appeal from Red River. The record disclosed that on the 15th day of May, 1846, James H. Johnson, since deceased, but then residing in Red River county, entered into a contract with Thos. Hudgins, then of Virginia, for the sale of a tract of land containing forty-two hundred acres, which contract contained the following stipulations: “The said Hudgins agrees to pay the said Johnson, or his order, the sum of three thousand six hundred dollars, of which two thousand five hundred dollars are to be paid in four months from this date, and the remainder, of eleven hundred, on or before the first day of January, A. D., 1848; and the said Johnson agrees on his part, when the said Hudgins shall make the first payment according to the tenor of this contract, and shall execute his note with good and sufficient security for the remainder, that he will make a warrantee deed to the said Hudgins for said tract of land, with all the improvements thereon; possession to be given on the first of next January, or sooner if convenient.”

For the first payment (of twenty-five hundred dollars) stipulated in the contract Hudgins drew a bill of exchange in favor of said Johnson on one Spotts, of Virginia, payable at four months. The bill was duly presented at maturity, and protested for non-payment, and in December thereafter, Johnson elected wholly to disaffirm the contract, and advertised the land in question for sale. Johnson died in January, 1847, without having effected a resale of the land; and in May, 1848, Todd administered on his estate. In May, 1849, Wortham, as the assignee of Hudgins, filed his petition in the probate court, in pursuance of article 1162 of the Digest, to obtain a decree authorizing the administrator of Johnson to make him a title to the land. The petition set out the contract between Johnson and Hudgins and its assignment to the plaintiff by the latter. It stated that after the payment of the first instalment by the said Hudgins, and before the maturity of the last, “Johnson departed this life, not having made a deed to the land according to the terms of his contract,” &c. The administrator answered, expressly admitting the facts as stated in the petition, and adding that he believed it would be to the interest of the estate to carry out the contract by a specific performance. The probate court thereon gave judgment that the administrator make title in accordance with the prayer of the petition.

The widow of Johnson, who had intermarried with Caldwell, jointly with her present husband and the heirs of her former husband, brought this suit, under the provision of the Digest, to annul and set aside the order of the probate court.

The material facts disclosed by the record, in addition to those already stated, are that at the time of the contract of sale Johnson was in embarrassed circumstances, and was pressed for money; that he owed debts to a considerable amount, which he was desirous to pay, and particularly a judgment in favor of Glasgow and Harrison, recovered in 1844, for about thirty-eight hundred dollars; that upon receiving the draft before mentioned from Hudgins he assigned and placed it in the hands of Harrison, agent of Glasgow and Harrison, under an agreement that the amount, when paid, should be credited upon the judgment. On being protested the draft was returned to Harrison, who still retained it unpaid, and has not presented it as a claim against the estate of Johnson. Hudgins had no funds in the hands of Spotts, either at the date or maturity of the draft. There was an attempt to show that he “might have supposed he had some claim” upon the drawee. It was also agreed between Johnson and Harrison that when Hudgins should execute his note with security for the balance of the purchase-money, as specified in the contract, he, Harrison, would receive and credit it upon the judgment.

In October, 1847, after the death of Johnson and before the appointment of his administrator, an agreement was entered into between Todd, as the agent of Hudgins, and Wortham and Harrison, by which Todd assigned the interest of Hudgins in the contract between him and Johnson to Wortham for the consideration of forty-six hundred dollars, to be paid to Harrison in satisfaction of the judgment of Glasgow and Harrison against Johnson's estate. One thousand dollars was paid at the time, and Wortham gave to Harrison a note for the payment of the residue. Hudgins was examined as a witness, and stated that he had not paid the bill drawn by him on Spotts, and had no recollection of having executed the note for the residue of the purchase-money. He left Texas for Virginia in June, 1846, and did not return until December, 1848. It was in proof that he was insolvent at and before the making of the contract with Johnson. It was also in proof that the land was cheap at the price at which it was contracted...