White v. Cole

• Decision Date: 05 December 1894
• Citation: 29 S.W. 1148
• Parties: WHITE v. COLE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

29 S.W. 1148

WHITE v. COLE.¹

Court of Civil Appeals of Texas.

December 5, 1894.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by Mrs. Lou F. White against John H. Cole. From a judgment for defendant, plaintiff appeals. Reversed.

Thomas & Turney, for appellant. R. D. Coughanour, for appellee.

LIGHTFOOT, C. J.

This is an action of trespass to try title, in the usual form, brought by appellant to recover about four acres of land in Dallas, and for rents and damages. The defendant below (appellee) pleaded "not guilty," and the statute of limitation of three, four, five, and ten years. There was judgment below for defendant, from which this appeal is taken.

The facts were substantially as follows: On February 20, 1886, Martin Shultz was the owner of the land in controversy, and sold the same to appellee, John H. Cole, for $3,000, payable as follows: (1) $1,000 in cash; (2) two notes of $500 each, due by Shultz to Alford, which were assumed by Cole; (3) a note for $1,000, from Cole to Shultz, due in one year, with 12 per cent. interest per annum, and 10 per cent. attorney's fees if collected by legal process, which was secured by a vendor's lien reserved on the face of the deed. The two $500 notes were paid by Cole to Alford, but the $1,000 note has never been paid. On September 7, 1891, appellant, as owner and holder of the $1,000 note, brought suit thereon in the district court of Dallas county against appellee, who refused to pay the same, and pleaded the statute of limitation of four years in bar of the note. By subsequent pleadings, appellant changed the suit to an action of trespass to try title for the land in controversy. To this appellee pleaded the general issue in trespass to try title, and 3, 5, and 10 years' statute of limitation. There was a judgment in favor of appellant for the recovery of the land October 5, 1892, which was set aside by the court below at the same term, and a new trial granted. Upon a subsequent trial, judgment was rendered for appellee. Appellant is the owner of the note and the land under deed from Shultz, and, the note not having been paid in whole or in part, the superior title to the land is in her, and she is entitled to recover.

From the conclusions of law filed by the learned court below, his decision was made upon the following ground. The court says: "(1) While the deed from Shultz to defendant, Cole, is an executory contract, yet the court finds that the plaintiff has only the right Shultz would have had in the land, if he had not conveyed to her; and if Shultz, without conveying the land to plaintiff, Mrs. White, had brought suit to collect the note, that would have been an election by him to affirm the contract of sale to Cole, and Shultz could not afterward have maintained a suit to recover the land, which would have been virtually a suit to rescind the sale. And in this case, plaintiff, Mrs. White, having brought suit for judgment for the amount of the note, claiming that it had been assigned to her by Shultz, cannot now recover the land." This conclusion is erroneous, and is attacked by appellant by proper assignment of error. The rule as laid down by the supreme court of this state is clearly set forth in the opinion of Judge Gaines in the case of McPherson v. Johnson, 69 Tex. 487, 6 S. W. 798, as follows: "Under the rule of decision in this court, the contract pleaded was executory. The plaintiff made no offer in his pleadings to pay the purchase money. On the contrary, he set up the statute of limitations to the intervener's prayer for judgment on the note. The vendee in an executory contract, who has not paid the purchase money, must at least offer to pay, in order to enforce the agreement. The vendor's right of action on his debt may be barred, and his privilege of election thereby lost, but the vendee is not relieved of his obligation to pay the debt, if he would hold the land. The debt remains though the right of action be barred (Fievel v. Zuber, 67 Tex. 275, 3 S. W. 273); and, without an offer to pay it, the vendee, if in possession, cannot defeat the suit of the vendor for the recovery of the land; nor, if out of possession, can he recover against the vendor, or any one holding under him. We think these principles well settled in this court, and that they need no further discussion. Harris v. Catlin, 53 Tex. 8; Jackson v. Palmer, 52 Tex. 434; Baker v. Ramey, 27 Tex. 53; Dunlap v. Wright, 11 Tex. 604; Burgess v. Millican, 50 Tex. 397. It is unnecessary for us to consider what would have been appellant's right had he made an offer to pay. It is insisted, however, that plaintiff's vendor, having elected to bring suit upon the note, thereby affirmed the contract, and lost his right to claim the land. But we take this to be the rule: If, after such default as justifies the vendor in rescinding the sale, he proceeds for the price, he loses his right of rescission, provided the vendee avail himself of his privilege to pay the debt. But the contract still remains executory, and the latter cannot, by pleading limitations, defeat the action for the debt, and still claim the land under a contract with which he has refused to comply." The same learned judge, in the case of Lanier v. Foust, 81 Tex. 189, 16 S. W. 994, says: "A deed conveying land and reserving a lien upon it for the unpaid purchase money is treated in this court as an executory contract, and it is accordingly held that, whenever the vendee refuses to pay, the vendor may claim an immediate rescission, and may recover the land." In the case of Pierce v. Moreman, 84 Tex. 601, 20 S. W. 821, Judge Stayton, in a full discussion of the rights of a delinquent vendee under an action of trespass to try title, says: "In Cattle Co. v. Boon [73 Tex. 556, 11 S. W. 544] it was said: `This suit being to recover the land, defendants were required to plead their defenses, and make or tender payment of the purchase money, before judgment, and not afterward. If the defendant in such case, where the suit is by one holding the title for the recovery of the land, elect to depend upon the ordinary defenses, such as title in themselves, or outstanding title in another, the statute of limitations, or the inability to show title in himself by the plaintiff, they may do so by the usual modes of pleading and evidence; but if in such a case as this the party in possession without title, but with the equitable right to acquire it by the payment of a sum of money, desires to have that relief, he must come, as suggested in Ufford v. Wells, "doing equity before he can ask equity, and redeem by payment of the purchase money." Doing this "under appropriate allegations, his equities can still be enforced." 52 Tex. 620. We think a vendee so situated and failing to pay the purchase money before suit, if the vendor elects to sue for the land, can only get protection through a court of equity by bringing the money into court and placing it in the power of the court. The defendants not having paid or tendered the balance of the purchase money or pleaded an unconditional offer to pay it, but having resorted to the defenses usually made in actions to try title, we think that upon their failure to establish these defenses plaintiff was entitled to have a judgment for the land to which he established title.'" In the same case the court says, on page 602, 84 Tex., and page 821, 20 S. W.: "If the vendors of Farrell and Kendrick had sought to recover the land from them and...