Vardeman v. Lawson

Decision Date01 January 1856
PartiesWILLIAM VARDEMAN AND OTHERS v. HENRY M. LAWSON AND OTHERS.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

Where it was assigned for error in a suit for specific performance of a lost bond for title that there had not been sufficient evidence of the contents of the bond, this court said: There does not appear to have been any question made by the plaintiff in error as to the terms of the bond. When called on to make title he virtually admitted that he had contracted to do so, and placed his refusal upon other and quite different grounds from those suggested in argument.

There can be no doubt or uncertainty as to what is to be understood by a bond for title. It is an instrument which evidences a contract for the sale of land; and is substantially an agreement by the vendor to make to the vendee a title to the land purchased. Where the purchase money is paid it vests in the purchaser the equitable title, under our law, sufficient to enable him to recover and defend the possession, in any action wherein his right to the possession may be drawn in question; it is superior to the legal title remaining in his vendor; and a court of equity will compel a specific performance by decreeing a conveyance by the vendor of the legal title.

By having given a bond for title, it is understood, in this country, certainly in this state, that the vendor has contracted to make to the purchaser a good and valid legal title, with the usual covenants of warranty, in the form prescribed by the statute concerning conveyances. (General warranty.)

Where, upon the sale of land, it appears that a bond for title has been given, without more, it is understood that the vendor has contracted that the purchaser shall have a good title; that is, a deed of conveyance valid and effectual to pass the title in the ordinary and statutory form containing the usual covenant of warranty.

A statute of limitations has no direct application to suits for specific performance. And where lapse of time is relied on as as a defense, it must be set up as a defense by a plea or exceptions. [4 Tex. 159;9 Tex. 239;13 Tex. 484;15 Tex. 211, 394;21 Tex. 249.]

The defendants in error paid the purchase money, and shortly after the purchase went into possession under the contract, and have so continued. Theirs is the superior and better title; and though a conveyance of the legal title was not necessary to the maintenance of their right as against their vendor, yet, while the legal title was retained by the vendor, it was a cloud over their title, which they had the right to have removed, and which it was important to them should be removed. (It was over ten years since the date of the bond, and the obligees had been in possession nine years; and this was said in answer to argument of stale demand.) [4 Tex. 165;11 Tex. 237;15 Tex. 394;18 Tex. 117;20 Tex. 419;29 Tex. 95.]

A bequest of slaves to trustees for the proper use and benefit of a married woman, but to be in no wise subject to the liabilities or contracts of the said James Butler, her husband, from whom she is now separated; she to have the possession and control of said property, subject to the advice and disposal of the trustees; but should she survive her husband, James G. Butler, or be otherwise legally divorced from him, then and in that case the said property is to be no longer the property of said trustees, but to vest absolutely and entirely in her; Butler having died or the legatee having been divorced from him, she married another husband in the state of Alabama where the bequest was made, and where the common law of England was proved to be in force: Held, that by the second marriage the slaves became the property of the husband. [7 Tex. 26;22 Tex. 544.]

It would seem that where the proof is, that the common law of England was in force in another state, whose laws determined the question at issue, it is proper for the judge to instruct the jury as to the common law upon the very question.

Error from Rusk. Tried before the Hon. W. W. Morris.

Suit commenced October 15, 1853, by Henry M. Lawson and others against William Vardeman for the specific performance of a bond for title. The bond was alleged to be lost. Ailcy D. Vardeman, wife of said William, filed her petition of intervention against both the plaintiffs and defendant, to recover the land in controversy, on the ground that it had been purchased with her separate property, of which she alleged the obligees in the bond had notice.

The facts were that Ailcy's mother died in 1832, in the state of Alabama, leaving a last will and testament which contained the following bequest: “I give and bequeath unto William G. Hester and James Nicholson, in trust for my daughter Ailcy Dickson, who has been married to James G. Butler, but from whom she is now separated, my negro woman named Violet and her increase, also my negro boy named John, together with,” etc., etc., “to have and to hold the aforesaid negro woman and boy,” etc., etc., “for the proper use and benefit of Ailcy Dickson, my daughter as aforesaid, and to the heirs of her body; but to be in no wise subject to the liabilities or contracts of the said James G. Butler, her husband; but she is to have the possession, use and control of said property, subject to the advice and disposal of my said trustees. And in case the said Ailcy Dickson dies without issue, then the aforesaid property is to be equally divided amongst her sisters, my daughters; but should the said Ailcy survive her husband, James G. Butler, or be otherwise legally divorced from him, then and in that case the said property is to be no longer the property of said trustees, but to vest absolutely and entirely in her, the said Ailcy Dickson.”

After the death of Butler, or after the divorce of Ailcy from him (The statement of facts read thus.--REP.), she married William Vardeman, in Alabama, in 1834, having said slaves then in her possession. Vardeman and wife came to Texas in 1838 or 1839, and purchased the land in controversy, paying therefor with the said slaves, and went into possession and cultivated the same. The deed for the land was taken to the husband, William Vardeman.

In the year 1843, on the 3d of October, in the state of Alabama, William Vardeman executed a bond for title to the land in controversy to the plaintiffs, being paid for the same in full, in slave property, at the time. Ailcy was not present when the said sale was made, but expressed herself satisfied when she heard of it. In 1844 the obligees in the bond went into possession of the land, and occupied it ever since without interruption. Before the commencement of the suit William Vardeman refused to make the title; said the title was in his wife, and that he could not and would not make title, and that the bond was not recorded and was therefore worthless, and that therefore he would not make title. “The conditions of the bond were not in proof, except as shown in the admissions and statements of the pleadings of Ailcy and William Vardeman, and the oral testimony and depositions, the substance of which is herein set out. The loss of the bond was fully proved. The common law of England and statute of frauds were in force in Alabama when Vardeman and Ailcy married in that state, and for many years before and after.”

In the petition of intervention, the making of the bond was alleged. Vardeman's answer contained a general demurrer, general denial, and plea “that the plaintiff's cause of action, if it ever existed, accrued more than four years before the commencement of this suit.” To the plea of limitation the plaintiffs filed a general demurrer, which was sustained.

The judge charged the jury as follows:

By the terms of the will, in evidence, on the divorce of Butler from his wife, Ailcy Vardeman, or on the death of said Butler, the property in the negroes Violet and John vested absolutely in Ailcy Vardeman, and by the marriage of said Ailcy with the defendant William Vardeman, in the state of Alabama, the right and property, by virtue of said marriage and the law of Alabama, vested absolutely in William Vardeman as his separate property.

If you find clearly to your satisfaction, from the proof, that William Vardeman executed the bond for title to land as named in the petition, and you are reasonably convinced, by the proof, of the death or divorce of Butler, the former husband of said Ailcy, and her subsequent marriage in the state of Alabama with Vardeman, you will find for the Lawsons.

If the above facts are not made out, you will find for Vardeman and wife.

At the request of counsel for William, the judge gave the following instructions:

That although the existence of the bond for title and the loss may have been proved, yet the terms of said bond must be proven in a clear and unmistakable manner, in order to entitle the plaintiffs to a specific performance of said bond.

That the admissions of Ailcy D. Vardeman in the pleadings, as to the existence of said bond, did not bind William Vardeman, and cannot be taken into consideration in the case against said William Vardeman.

Verdict for plaintiffs, and decree vesting the title in them, “and that a copy of this decree issue to them as their muniment of...

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14 cases
  • Douglas v. Douglas
    • United States
    • Idaho Supreme Court
    • 15 Julio 1912
    ...Macken, 62 Barb. (N. Y.) 145; Lyon v. Knott, 26 Miss. 548; Cade v. Davis, 96 N.C. 139, 2 S.E. 225; Cressey v. Tatom, 9 Ore. 451; Vardeman v. Lawson, 17 Tex. 10.) As now stands, the property described in plaintiff's complaint is not inventoried in the probate court, nor has the probate court......
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    • United States
    • Texas Supreme Court
    • 31 Octubre 1866
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  • Carson v. Taylor
    • United States
    • Texas Court of Appeals
    • 28 Enero 1922
    ...pleading. According to the following authorities the defense of laches must be specially pleaded. Jackson v. Palmer, 52 Tex. 427; Vardeman v. Lawson, 17 Tex. 10; Dewitt v. Miller, 9 Tex. 239; Rutherford v. Carr, 99 Tex. 101, 87 S. W. 816. Even though waiver be established by proof without o......
  • Biggs v. Poling, 5072.
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    • Texas Court of Appeals
    • 6 Noviembre 1939
    ...remaining in his vendor; and, there being no possession adverse to his right, the statute of limitations does not run against it. Vardeman v. Lawson, 17 Tex. 10.' "It was announced in Rutherford v. Carr, 99 Tex. 101, 87 S.W. "`There is no statute of limitation which prescribes a bar to the ......
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