Wilson v. Simpson

• Citation: 4 S.W. 839
• Parties: WILSON and others v. SIMPSON and others.
• Decision Date: 20 May 1887
• Court: Supreme Court of Texas

Page 839

4 S.W. 839

WILSON and others v. SIMPSON and others.

Supreme Court of Texas.

May 20, 1887.

Appeal from district court, Comanche county.

N. R. Lindsey and Fleming & Moore, for appellants. Wood & Charlton, for appellees.

GAINES, J.

On the eighth day of October, 1837, Epps D. Payne executed to W. H. Harris a bond in the sum of $5,000, conditioned as follows: "That if the above-bound Epps D. Payne, his heirs, executors, or administrators or assigns, shall make, or cause to be made, unto the said William H. Harris, his heirs or assigns, a good and sufficient warranty bona fide title to the remaining part of my own head-right of land, to which I am entitled as the head of a family, under the constitution and laws of this republic, viz., two-thirds of a league and labor of land, all expense on the same to be paid by the said Payne or his deputy or agent so soon as I myself can obtain one from this government, now, if the above-bound Epps D. Payne shall well and truly perform, fulfill, and accomplish unto the said William H. Harris the title as above mentioned, then, and in that case, this bond or obligation is to be null and void, or else to be and remain in full force and virtue." On the second day of February, 1838, a certificate for a league and labor of land was issued to Payne, as the head of a family, by the board of land commissioners of Sabine county. This certificate was located on the two-thirds of a league of land in controversy in 1851. The field-notes recite that the location was made for Payne, and the patent, which is dated in 1852, issued in his name. This suit was brought by the heirs of Harris and of his wife to recover of appellants, who were in possession of the premises, claiming under conveyances from the heirs of Payne, the land so located by virtue of the Payne certificate. The issues involved in this appeal will be determined by the effect which is to be given to the title bond from Payne to Harris as an instrument of conveyance.

In Gainer v. Cotton, 49 Tex. 119, a bond similar in form to the one before us was held not merely an executory contract for the sale of land, but a conveyance which passed proprio vigore the legal title. We do not doubt the correctness of that decision. The laws of Mexico were still in force in Texas when the bond in that case was executed. It is apparent from its face that the parties to it were accustomed to the common-law forms of conveyancing, and that in making it they were acting upon the idea then prevalent that the claimant of land could not convey it by deed before the issue of the final title from the government. The bond shows that its consideration was the executed transfer of a lot from the obligee to the obligor, and clearly manifests the intention of the parties that the obligee was to become immediately entitled to a half interest in the obligor's half of a league of land which is therein described. These embrace all the elements of a sale under the Mexican law, and hence the execution of a deed in the pursuance of such a bond would add nothing to the validity of the title. The court accordingly held, in that case, that the instrument, though in the form of a bond for title, was in itself an effective conveyance of the legal title, and that, therefore, the plea of stale demand could not be set up against one claiming under it. But there is a very broad distinction between that and the case we have before us. Here, when Payne executed the bond to Harris, he had no land to convey. He had a right to land under the laws of the republic, but as yet had received no certificate as an evidence of that right. The contract seems based upon the idea that the obligor had received a portion of the land, and was entitled to a two-thirds of a league more, and he binds himself to procure a certificate for this amount of land at his own expense, and to make title to it to the obligee. The certificate, however, issued for the whole league and labor. This gave Harris an undivided interest of two-thirds in the certificate. Now, the location having been made, and the patent having issued in the name of Payne, we think it quite apparent that whatever right the heirs of Harris had in the land was an equitable right, and their sole remedy in a court of equity. The claimants under this bond would have no standing whatever in a court of law under a system of jurisprudence where law and equity are administered in separate forums, and they could obtain no relief even in a court of equity without proving that the bond was supported by a valuable consideration. Short v. Price, 17 Tex. 397; Downs v. Porter, 54 Tex. 59; Earley v. Sterrett, 18 Tex. 113.

In several respects the case is wholly unlike that of Gainer v. Cotton, supra. In that case the consideration clearly appeared on the face of the bond to have been executed. The obligor was at the time the owner of the land which he undertook to convey. Hence it was held a conveyance under the Mexican law, which knew no distinction between the legal and equitable title. But in the case before us the contract is executory. It is to make title to the certificate when issued. In order for the heirs of the obligee to recover the land, it would be necessary for them to prove a consideration, then to establish a trust in the certificate, and through this a trust in the land. This, as we take it, would be an equitable proceeding, and one to which, if not instituted within proper time, the plea of stale demand would be applicable. In this view of the law we think we are well sustained by numerous authoritative decisions of our own court. McFaddin v. Williams, 58 Tex. 625; Flemming v. Reed, 37 Tex. 152; Yeary v. Cummins, 28 Tex. 91; Glasscock v. Nelson, 26 Tex. 150; Smith v. Hampton, 13 Tex. 459; Johnson v. Newman, 43 Tex. 628; Mitchell v. Sheppard, 13 Tex. 484.

The court below took a different view of the instrument, and charged the jury as follows: "The jury is further charged that the plaintiffs have introduced in evidence a title bond and obligation in writing, dated the eighth day of October, 1837, from Epps D. Payne to W. H. Harris, which was duly recorded in Comanche county ____ day of ____, 1861; also a land certificate issued by the board of land commissioners of Sabine county, Texas, to Epps D. Payne, for a league and labor of land, dated second day of February, 1838; also field-notes of a survey made under said certificate, and made by locator of certificate on ____ day of ____, A. D. ____; also the patent from the state of Texas to Epps D. Payne, his heirs or assigns, by virtue of said certificate and location dated ____ day of ____, 1852; that the legal effect of such evidence is to vest title to the land in controversy in the heirs of ...