Bryan v. Johnson

39 Tex. 31 | Tex. | 1873

Ogden, P. J.

It is a well settled principle of the law of this State, that a purchaser of real estate who goes into possession of the purchased property under a deed with warranty and gives his note for deferred payments of the purchase money, cannot resist the payment of those notes on the ground of a failure of consideration, unless he shows that he has been or is liable to be evicted by a superior outstanding title. It is not sufficient for Mm to show that some one of the links in his chain of title is irregular, and that his title may at some future day be disputed. 1 ‘ But where the purchaser goes into possession under a deed of warranty with notice of defects in the title, there are no equitable grounds upon which he can withhold the purchase money for failure of title.” (Demaret v. Bennett, 29 Texas, 268.) The deed or instrument of writing as set forth in this record is undoubted evidence of an executed contract. There was nothing left for the grantors to do ; they had conveyed their entire interest to the land, and placed the same absolutely beyond their control, and th.e only right reserved to them was a security for the purchase money, or in other words they reserved by express terms the vendor’s lien.

There can be no question that this was an executed contract and must be treated as such, and any allegations in defendant’s answer to the contrary should have been disregarded by the court.

This then must be treated ¡as the case in Demaret v. Bennett, where the defendant purchased and went into possession with knowledge of whatever defects there were in the title, and he cannot resist the payment of the purchase money unless he shows he has been evicted. This view of the law of this case clearly demonstrates the correctness of the ruling of the court upon exceptions. The defendant below alleged a failure of title to a part of the land purchased, and prays a cancellation of the contract in part only. He purchased' with a full knowledge of all defects in the title, if. there are any, and he does not allege fraud or mistake. He, therefore, was not entitled to a cancellation of the contract in part only, but should have prayed for a cancellation of the entire contract, if he wished the interposition of the equitable powers of the court. But even if he were entitled to a cancellation of the contract in part, yet he makes no tender of the deed for cancellation or possession, excepting upon certain conditions of his own prescribing. Such a proposition a court of equity could never entertain, and the District Court did not err in wholly disregarding it.

There is no statement of facts accompanying this record, and therefore we are permitted to review the charge of the court only in so far as it may appear to be in violation of the established rules of law, or contrary to the recognized principles of equity. And after a careful perusal of the record, we discover no errors of law requiring a reversal of the judgment, and it is affirmed.

Affirmed.