Estes v. Browning

• Decision Date: 01 January 1853
• Parties: ESTES v. BROWNING.
• Court: Texas Supreme Court

11 Tex. 237

ESTES

v.BROWNING.

Supreme Court of Texas.

1853.

A vendee, by executory contract, who, after having paid part of the purchase money, refuses to go on with the contract, forfeits the amount already paid; and the vendor may bring suit and recover the land agreed to be conveyed. (Note 41.)

To entitle the purchaser to recover back the deposit or a part of the consideration money, he must put the vendor in default by tendering the balance of the money, and demanding a conveyance.

The rule that an administrator must plead the statute of limitations where it will defeat an action against the estate, is subject to exception where such plea would forfeit a more valuable right; for example, where the notes sued on were given in an executory contract for the purchase of land. (It was probably deemed apparent in this case, that the completion of the purchase would have been beneficial to the estate; and nothing was said as to the rule, in case it were not so apparent.)

The vendor, in an executory contract, has superior right to the land, until the purchase money is paid. This right is not affected by either the default of the vendee or his death. It can be forfeited by the vendor's own default. If he refuse compliance with his stipulations, they may be enforced or the vendee may rescind the contract and claim the restoration of the purchase money advanced.

We have no forms of action; and if, upon the facts stated, the plaintiff be entitled to recover, he must have judgment.

The trespass may be waived, and suit be brought for the value of the use and occupation.

Where the vendee in an executory contract for the sale of land, fails to pay the purchase money according to the contract, and the vendor brings suit to recover the land, the vendee, if he can present any equitable considerations in excuse for his negligence, may offer to pay and pray a conveyance.

Where A contracted, in 1839, to convey to B a tract of land, upon the payment of two notes for the purchase money, at one and two years; and B died in 1845, having made several payments; and his administrators rejected the notes as claims against his estate, they being barred by the statute of limitations, and A sued the administrator, who was in possession, to recover the land, and did recover it, by judgment of the District Court, affirmed on appeal; and A then sued the administrator who was in possession, for the use and occupation of the land, from the date of the recovery of the land in the District Court; the Court said, that, as the vendor had acquiesced in the delay of the vendee, during his lifetime, by receiving payments, and as the administrators had mistaken their duty in rejecting the claims, the latter might set up the original contract, in this suit, and pray a specific performance, by the vendee, upon payment of the purchase money. (Nothing was said as to the effect of the judgment in the former suit.)

Appeal from Washington. Suit brought April 22d, 1850, by Estes against W. A. Browning, for the recovery of four hundred dollars for the use and occupation of a tract of land, from the 28th of May, 1847, to the 1st of January, 1850. Browning answered, that the land was held jointly by himself and Asa M. Lewis, as administrators of Nathan P. Browning, deceased, and prayed that Lewis might be admitted as a co-defendant; and thereupon Lewis and Browning answered jointly. The facts were, that in 1839, Estes contracted to sell to N. P. Browning the land for the use and occupation of which this suit was brought, Browning giving two notes, one at twelve months and the other at two years, receiving a bond for title to be made as soon as the purchase money should be paid. Browning made various payments, amounting to about one-half the purchase money and died in 1845, having made valuable improvements. In August, 1846, the notes were presented to the administrators of Browning, the present defendants, and were rejected. At the Fall Term, 1846, Estes sued W. A. Browning, who was then in possession of the land, for its recovery; and a few days afterwards, to the same Term, sued the administrators to establish the notes as a valid claim against N. P. Browning's estate. To the last named suit, the defendants pleaded the statute of limitations; and the plaintiff dismissed it. At May Term, 1847, Estes recovered judgment against Browning, in the other suit, which was affirmed on appeal to the Supreme Court, at December Term, 1849, reported in 3 Tex. R., 463. W. A. Browning had remained in possession of the land until January 1st, 1850, and this suit was brought to recover the value of the use and occupation from the date of the recovery in the District Court. The defendants pleaded in reconvention the value of the improvements, and the money paid by N. P. Browning, their intestate. The plaintiffs replied the judgment in the former action, in which the same matters were in controversy. The Court charged the jury, in substance, that the plaintiff could not recover, unless he showed a contract between himself and W. A. Browning, otherwise Browning being a mere trespasser, and not responsible in this form of action; and that the defendants were entitled to recover back the purchase money, with interest. The verdict was that the plaintiff had no cause of action, and that the defendants recover the sum of $3,701.95, the value of the improvements, and the money paid. Judgment accordingly, from which the plaintiff appealed.

J. Willie, for appellant. I. It follows from the case of Browning v. Estes, 3 Tex. R., 463, that the administrators ought to have allowed the claims against their intestate, for the purchase money of this land, unless they were prepared to prove, when called to account for having failed to do so, at the suit of an heir or creditor, that it was more for the advantage of the estate to reject the claims, thereby rescinding the contract, and forfeiting the money paid, than to allow the claims and complete the purchase.

II. The charge of the Court, to the effect that the defendants were entitled to recover back the purchase money and the value of the improvements, was manifestly erroneous. Estes had never been in default. Vendee alone had been in default. (14 Johns. R., 363.) The administrators could not have sustained the plea in reconvention, even if it had been filed, where it should have been filed, if at all, in the former suit, to recover the land. (3 Tex. R., 463; Ketchum v. Evertson, 13 Johns. R., 359;Ellis v. Hoskins, 14 Id., 363; Benedict v. Lynch, 1 Johns. Ch. R., 370; 5 Ves., 718.)

III. Much less can they sustain it in this suit, which is brought to recover the value of the use and occupation, since the date of the recovery in that case, in the District Court. The judgment in that suit was pleaded and proved, and settled the rights of these parties. Unless it be overruled, it is fatal to the claim here set up by the appellees. To sustain this judgment would be equivalent to deciding that one of the parties to such a contract may, at any time, refuse a compliance what it, and by refusing to pay the balance due, acquire a right to recover what has been paid.

IV. The charge of the Court, that Estes could not recover in this form of action, unless he showed a contract with Browning, was erroneous. We have no distinction as to forms of action. (2 Tex. R., 206; 3 Tex. R., 214.)

J. Sayles, also, for appellant.

Webb & Oldham, for appellees. I. The notes being barred by the statute of limitations, the administrators had no authority to allow the same, as legal demands against the estate; and a payment by them would have been a devastavit. In support of this proposition the following authorities are relied upon. (Patterson v. Cobb, 4 Flor. R., 481; Fisher v. Tucker, 1 McCord's Ch. R., 175; Peck v. Potsford, 7 Cowen R., 180; Richmond, Adm'r, v. Petitioner, 2 Pick. R., 567; Rogers v. Rogers, 3 Wend. R., 517; Thompson v. Peters, 12 Wheat. R., 565; 6 Pet. Cond. R., 649.)

It follows most clearly from the above proposition, that the administrators, by interposing the statute of limitations to the claim, did not thereby place the vendee in default, and subject the estate to a forfeiture of the purchase money paid, and a loss of the improvements made upon the land. (Pickett v. James, 2 Humph., 556; Coles v. Kelsey, 2 Tex. R., 541; Dudley's R., 119; 2 Bailey's R., 92; 2 Aik. R., 349; 1 Watts' R., 271.)

II. Again, the vendee (and it is believed that his representative would be bound by the same rule) has no right to sue for a specific performance, before the vendor is in default. (Sug. on Vend., 181; 5 Ala. R., 604.) The administrators, in this case, had no right to tender the purchase money, and demand a conveyance; and could not, therefore, put Estes in default, so as to authorize them to sue for a specific performance. It is true, as a general rule, that if a vendee, after having paid part of the purchase money, refuses to go on and complete the contract, he forfeits the amount which he may have already paid; and the vendor may bring ejectment and recover the lands agreed to be conveyed. (Ketchum v. Evertson, 13 Johns. R., 359; Green v. Green, 9 Cow. R., 46; Rounds v. Baxter, 4 Greenl. R., 454. But it is contended that this rule applies only to a case where the vendee may complete or abandon the contract, at his discretion, or where a specific performance may be decreed against him; it is only in such cases that the rule is so laid down.

III. This Court, in the previous case between the present parties, held, that, inasmuch as the administrators of Browning had refused to pay the balance of the purchase money, because the same was barred by the statute of limitations, Estes might treat the contract as rescinded and recover the land. (Browning v. Estes, 3 Tex. R., 463.) The reasoning of the Court, as to the hardship on the vendor, to lose the balance of the purchase money and not recover the land, is respectfully invoked for the vendee in...