Allison v. Shilling

| Tex. | Jul 1, 1864

Moore, J.

The exception of the defendant in the court below, who is the appellant in this court, to the plaintiff’s petition, for the non-joinder of proper parties as defendants, should have been sustained. There is no privity between the parties to this suit in the contract, for which a specific performance is asked. The plaintiff is not the assignee of the bond which he seeks to enforce against the defendant. His right to maintain this suit, and to claim that the land described in the defendant’s bond shall be decreed him, rests upon his equitable title from those who acquired a like title to it, under the defendant’s vendee, the obligee in the bond upon which the plaintiff brings his suit. In considering who are the proper parties to suits by assignees upon bonds, Mr. Story lays down the following rule: “ The true principle would seem to be that, in all cases where the assignment is absolute and unconditional, leaving no equitable interest whatever in the assignor, and the extent and validity of the assignment is not doubted or denied, and there is no remaining liability in the assignor to be affected by the decree, it is not necessary to make the latter a party. But where the assignment is not absolute and unconditional, or the extent or validity of the assignment is disputed or denied, or there are remaining rights or liabilities of the assignor, which may be affected by the decree, then he is not only a proper but a necessary party.” (St. Eq. Pl., § 153.) It is a general rule in equity pleading that all persons whose interest is to be affected by a suit, are necessary parties to it. The plaintiff in this case seeks to divest the title out of the defendant, not in favor, however, of the party to whom he is bound by his bond, or its assignment, but in favor of one claiming under a contract to which he is a stranger, and, it must be presumed, ignorant as to its stipulations, and unadvised whether they have been fulfilled. Under these circumstances, we think, on principle and policy, the plaintiff should be required to make those through whom he claims the right of enforcing a contract, in which he has no privity, parties to his suit. The defendant should not be left to the danger of future liability to the obligee or assignee of his bond after the title has been divested out of him in favor of a stranger.

There is another question presented in the record upon which, though not affecting the present result of the case, it is proper we should express an opinion. After the institution of this suit, the wife of the defendant, in the court below, intervened, and asks that the specific performance of the contract set forth in the defendant’s bond be refused, and said bond cancelled and annulled. The ground upon which this action of the court is invoked, is that the land in question was, at and previous to the execution of said bond, the homestead of herself and husband; that she was at that time, and still continues, unwilling to its sale, and refused to join in, or consent thereto. In reference to this petition, the plaintiff alleges, and the proof sustains his statement, that immediately after the execution of the bond by the defendant, the intervenor removed with him to another tract of land in the neighborhood, upon which he had taken a pre-emption claim, where they made improvements of equal comfort and value with those on the place from which they removed. In view of these facts, we are of the opinion that the failure of the intervenor to consent to the sale of the land, or to join in the execution of the bond, and her dissatisfaction with the transaction, and unwillingness to part with the premises, furnish no grounds for withholding a decree, or for cancelling the bond as prayed for by her. Although a specific performance of the bond could not be decreed while the premises remained the homestead of the defendant and his wife, yet, the bond of the husband to convey at a future day a tract of land, although the homestead of himself and his wife, is not an unlawful undertaking. “ It is true,” as is said in the case of Brewer v. Wall, 23 Tex., 385, “while the premises, which the party might so undertake, by his bond, to convey, remain the homestead of himself and his wife, the courts would not decree a specific performance of the contract.

“ But if the wife should die before the time expressed for the performance of the bond; or if, before the expiration of that time, the obligee in the bond, and his wife, should acquire another homestead, then the courts might decree the specific performance of the bond; because any legal obstacle to a specific performance would be removed.” It is evident, after the wife has voluntarily left the former homestead, and accompanied the husband to and accepted the new one provided by him, she can no longer insist that her homestead rights still attach to and control the abandoned premises. The object of the constitution, in this particular, is to secure the wife and family a home against the improvidence of the husband; but it did not intend to jeopardize the rights of others, or to leave her in doubt as to what premises her rights attached, if, during coverture, she had, at different times, migrated with her husband from one homestead to another. The judgment is reversed and the cause remanded.

Reversed and remanded.