Bullion v. Campbell

27 Tex. 653 | Tex. | 1864

Moore, J.

The judgment in this case must be affirmed. The object of the suit was for the recovery of the land to which the plaintiffs in the court below claimed they were entitled by the contract set out in their petition; and if this could not be had, then they asked a judgment for the damages sustained by them for the breach of said contract. It has frequently been held by this court, that the statute requiring the presentation of claims against the estates of deceased persons to the administrator before suits can be brought upon them, is not applicable to a contract to convey land, or for the recovery of damages on the breach of such a contract. (Robinson v. McDonald, 11 Tex., 385 ; Evans v. Hardeman, 15 Tex,, 481; Peters v. Phillips, 19 Tex. R., 70.) The primary object of contracts, such as the one upon which this action is founded, is to secure a title to land. It only becomes an obligation for money upon the contingency which gives the obligee the right to claim damages as a secondary consequence. (Hemming v. Zimmersehitte, 4 Tex. R., 159.),

The assignment of the bond to Campbell and Strong, was alleged and proved to be upon a valuable consideration. They were, therefore, entitled, upon well established principles and practice in courts, of equity, to bring and prosecute their suit in their own name. The contract upon which the suit was brought was in writing. The statute of frauds could not consequently be interposed as a bar to their recovery. The assignment of the bond, which was in parol, was not the contract which it can properly be said they were seeking to enforce, and must be regarded, especially in view of the facts in this case, as merely the transfer to Campbell and Strong, of the obligation or contract between the orginal parties, and not as of itself a contract conveying land to which the defendants in the court below could set up the statute of frauds, and thereby escape from a judgment of damages on the breach of their contract for the conveyance of lands for which, in point of fact, a title never existed.

The judgment is affirmed.

Judgment affirmed.