32 Tex. 310 | Tex. | 1869
As there seems to have been a misapprehension of the actual state of the record, both by the court and the attorneys in this case, at the time of the trial in the District Court, we deem it most conducive to the certain and final attainment of the ends of justice to reverse the judgment and remand the case for a new trial.
It appears, in the recitals of the judgment of the court, overruling the motion for a new trial, that an answer, and the only answer filed in the case, was made by the landlords of the original parties defendant to the suit, so characterized by the petition itself. Certainly, then, if they were the landlords of
The law confers an absolute right upon landlords to make themselves parties to suits against their tenants. (See Paschal’s Digest, Art. 5296.) Ho particular rule is prescribed in the statutes, by which they may become parties. And without such positive rule of law, it would be more regular, and most ‘Convenient, and more in unison with general practice, by oral motion, to ask leave of the court to be made a party. But the failure to do so, is a formal rather than a substantial error. There is no imperative requirement for it. Certain it is, how■ever, as shown by the record, an answer was filed by the landlords of the defendants, which made an issue of fact in the case, •and required proof to establish the allegations of the petition. And both the attorneys and the court seem to have acted under the impression that an answer was filed, because the proof was adduced by reading the deed of conveyance from the landlords to the plaintiff; which would have been wholly unnecessary if no answer had been filed, and a judgment by default had been taken against the original defendants, after default day, ■or Avas to be taken nunc fro tuno in the judgment upon the verdict of the jury. Without ansAver, the allegations of the petition are taken fro confesso, and nothing more is needed than what is technically called a AA’rit of inquiry, for the jury to determine from the testimony the amount of unliquidated damages for the mesne profits.
From the record it does not appear that judgment by default was taken before the final judgment; and that final judgment, in Avhicli the default judgment is embraced, if not taken before, is never entered until a motion for a new trial is disposed of. The recitals in the judgment disposing of that motion show very clearly, as it actually concedes the fact, that the ansAver filed was brought to the attention of the court
Having disposed of this question of the right of landlords to become parties in such actions, as a matter of practice; and as the case has to be re-examined in the court beloAA', it is important to look a little into the doctrine of law, as expounded by the court in the charge or instructions to the jury, which is excepted to in the third assignment of error, and is the pivotal point of the whole case.
An absolute and unqualified deed of conveyance for land, unquestionably gives the right of entry, and so the right of possession to the vendee or purchaser, against the A-endor, and against all the world, except against a party Avho may hold a paramount or superior title. If the deed relied upon in this case was without any reservation, stipulation or condition, undoubtedly the claim to the possession could not be resisted, either by the tenants or by the landlords. The lien reserved proclaims the nature of the contract of conveyance, and announces the terms and the conditions upon AA'hich the title, legal and equitable, is to become perfect. Till that stipulation is discharged, that condition is fulfilled, there is no absolute investature of title under an instrument like the present... Until the payment of the purchase money is made no suit can be brought against the vendor for the actual possession; nor does the right of possession accrue till such payment by the contracting vendee is actually made. Under our system of jurisprudence the vendor occupies the double position of Amndor and mortgagee. He has sold the land, but holds it still as a security for the debt. Here, by reason of the poAArer of the courts to settle both legal and equitable rights in the same action, it is not necessary, in any case, to make an absolute deed in fee, and then take a deed with a defeasance from the vendee for the same land, for the security of the payment of the purchase money. Under such a deed here, hoAvever, when the purchase money has been paid, the courts of the
In States Avhere the jurisdiction of courts of law and of courts of equity is kept distinct, this deed would he treated as a mere obligation to make title, a mere title bond, and it could not be used as eAÚdence in an action of ejectment by the plaintiff, in a common law court, where a party is required to recover upon the strength of his OAvn legal title. Such court, on such a trial, upon the presentation of such a muniment of title, would remit a party to a court of chancery, which, by compelling the parties to such an instrument to a specific performance, might perfect the legal title in the settlement of the equities betAveen them. The perfect title under our Iuav is the consolidation of the legal and equitable titles, Avhich our courts may accomplish on the trial of any case, if the proper parties are before them. The titles must co-exist to entitle a party to recover the actual possession of land against one ayIio holds an eqidty in it. Hence, if a mortgagee, avIio has an • interest in land for the security of a debt, is in possession of the mortgaged premises, the mortgagor can not recover from him that possession, until the debt seemed by the mortgage has been paid or extinguished by the rents and profits arising from the use and occupation of the land. In this case, if the purchase money for which the lien was retained has not been paid, the principle of justice Avhich Avould exact the expulsion of the vendor, or of his tenants, is not readily perceived or apprehended. Under such a deed as this, the right of entry, or right of possession, does not accrue against the vendor until all the purchase money is paid. Till the legal and equitable titles are consolidated in the vendee, he has no cause of action against his vendor for the possession; for, in this suit for the possession, the title has to be tried, and the equity remains in full force as long as there is an unpaid residue of the purchase money.
The judgment is reversed, the cause remanded, and a new trial awarded.
Reversed and remanded.