Walker v. Emerson

• Decision Date: 01 January 1858
• Parties: KIDDER WALKER v. HIRAM EMERSON.
• Court: Texas Supreme Court

20 Tex. 706

KIDDER WALKER

v.HIRAM EMERSON.

Supreme Court of Texas.

1858.

Where it was proved that the docket of the justice of the peace was lost or destroyed, and executions and sheriff's deed were produced, accompanied by proof of possession of the land by the purchaser and those claiming under him, it was held that it was error to instruct the jury, in general terms, that the judgment must be shown; and that it should have been left to the jury to find whether there was such judgment as was recited in the executions, or not.

In an action of trespass to try title, where the defendant entered under a sheriff's sale of the land as the property of a third person, a release from such third person, executed since the commencement of the suit, is admissible in evidence, to cure defects in the proof of the judgment, execution and sheriff's sale.

Where a vendee paid part of the purchase money, and entered into possession of the land, under a bond for title, and he and those claiming under him had continued in possession for fourteen years, it was held to be erroneous to instruct the jury that where a party receives a bond conditioned that he shall pay money at a particular time, he has no title until he pays the money; and if he has paid a part of the purchase money in advance, and fails to pay the balance according to the stipulations of the bond, he forfeits what he has already paid. The instruction was calculated to mislead.

The true position on that subject is, that the failure to pay the purchase money, when due, gives the vendor the alternative option, to sue for the balance of the purchase money, or for the land; and in a suit for the land, he could eject the vendee, unless, perhaps, the latter should bring the money into court, and claim a specific performance of the contract, not having repudiated it otherwise than by failure in point of time of payment. 11 Tex. 246;19 Tex. 76;21 Tex. 121;25 Tex. 129; 25 Tex. S. 318, 437.

It would seem that where a vendor, who has given a bond for title to land, which shows that the whole of the purchase money has not been paid, and under which the vendee takes and retains possession for ten years, fails to sell the land or sue for it, or otherwise repudiate the contract, within that time, he is precluded by limitation from his action to recover the land. If the possession of the vendee, and those claiming under him, was not adverse and continuous for the ten years, this rule might not prevail.

Where the vendor sued to recover land sold by him over ten years before, and produced a note given by the vendee at the time, for part of the purchase money; the vendor having given a bond to convey, upon the payment of said note; it was held that it was erroneous to instruct the jury that the production of the note by the plaintiff rebutted the presumption of its payment, from lapse of time; that (upon the supposition that plaintiff was not barred of all remedy), such lapse of time was a circumstance tending to prove payment, which ought to have been left to the jury to determine the facts, notwithstanding the production of the note by the vendor.

Appeal from Colorado. Tried below before the Hon. James H. Bell. The bond for title was as follows:

September 28th, 1841.

REPUBLIC OF TEXAS, County of Colorado.

This indenture witnesseth, that for and in consideration of the sum of eighty-five dollars in hand paid, the receipt whereof is hereby acknowledged, I, Hiram Emerson, of the aforesaid republic, and county of Fayette, have this day and date bargained and sold, and do by these presents bargain and sell unto John Izard, of the above republic and county, his heirs or assigns, a piece, parcel or tract of land, known as the former property of William Frels, of the above republic and county, containing three hundred and twenty acres of land; it being and lying on the east side of the road leading from Judge Cummings to Columbus, and bounded on the east by a tract of land known as the property of the aforesaid William Frels, containing three hundred and twenty acres, on the west by a small tract or piece of land belonging to the republic of Texas, on the north by a tract of land unknown, on the south by the league of land claimed by Shimishite, John York, and others; now if the said John Izard, of the county and republic aforesaid, shall pay or cause to be paid unto the aforesaid H. Emerson, his heirs or assigns, a note of hand given in the said Emerson's favor, for one hundred and sixty-five dollars, good and lawful money, in twelve months from the 28th of September, 1841; it being further agreed, that as the title is to come from the aforesaid Wm. Frels, of the above county and republic, that in case the said H. Emerson does not get, in the time of twelve months above mentioned, a good and lawful title from the above mentioned Wm. Frels, then the aforesaid John Izard has agreed to take from the said Emerson, the bond which he holds on the said Wm. Frels for the above mentioned piece or parcel of land of three hundred and twenty acres, bearing date September 28th, 1841, and duly tested: now if the said John Izard shall pay or cause to be paid unto the said H. Emerson, or his agent, the above mentioned note, within twelve months from the date of said note, then this article of agreement shall remain in full force and virtue, otherwise shall be null and void.

The other facts are stated in the opinion.

J. H. Robson, for appellant. I. The 1st charge of the court was erroneous. 1 Greenl. Ev. p. 144. II. The 2d charge of the court was erroneous. 12 Tex. 427. The legal effect of the instrument from Emerson to Izard was that of a deed of conveyance. III. Even, if we regard the instrument executed by Emerson as a bond for title, the 3d charge of the court was erroneous. If this be not one of those stale demands which can receive no favor from a court of justice, we are at a loss to know where to find one. 13 Tex. 484, 458, 462; Id. 463, 464; De Cordova v. Smith, 14 Id.; 9 Id. 148. The presumption of payment of the note after the lapse of 14 years from its maturity was, under the circumstances of this case, a conclusive presumption. And even if it were only a prima facie presumption, it was for the jury, not the court, to say whether the bare possession of the note by Emerson was sufficient to rebut that presumption.

S. S. Munger and W. G. Webb, for appellee. I. The language of the bond cannot be misunderstood. It provides that “if the said John Izard shall pay or cause to be paid unto H. Emerson, or his agent, the above mentioned note, within twelve months from the date of said note, then this article of agreement shall remain in full force and virtue, otherwise shall be null and void.”

Not content with leaving the law to annul the contract if the money was not paid, the parties determined that there should be no misunderstanding, and provided in express terms for its nullity upon a failure to pay; and the only question is, Was there a failure? The note itself was produced, and of course it was the very best evidence. The court charged that the lapse of time raised the presumption of payment. This charge was erroneous, for in stale demands for title, the law presumes the contrary, and that they have waived or settled their rights. De Cordova v. Smith, 9 Tex. 129;Smith v. Hampton, 13 Id. 464;De Witt v. Miller, 9 Id. 239;4 Pet. 311;8...