Callison v. Gray

25 Tex. 84 | Tex. | 1860

Roberts, J.

The bond obligates Callison, under a penalty of eight hundred dollars, to prosecute the suit to effect of Callison & Albright v. Thompson, then pending in the District Court of Tyler county for a league of land, including the two hundred acres bargained by him to Gray, and to perfect their title to said league, and thereafter to make to said Gray a bona fide title to said two hundred acres upon the payment to him by Gray of four hundred dollars, the purchase money. It was stipulated that the said four hundred dollars should become due the first Christmas after said suit is decided, and to bear, interest from the date of the judgment or decree in the case.

The object of the bond was to secure to Gray a bona fide title. Gray was evidently not willing to take a title during the pendency of the suit, and therefore Callison bound himself to prosecute it to effect, and perfect the title of Callison & Albright, who were the plaintiffs in that suit. After this should be accomplished, Gray was given still further time—to wit, until the next ensuing Christmas—within which to pay the purchase money. But as he would then be secure in a bona fide title to the land purchased, it was provided that he should pay interest on the purchase money from the date of the judgment or decree thus perfecting the title in Callison & Albright.

The question then is, did the judgment of the District Court, which was suspended by appeal to the Supreme Court, perfect the title in Callison & Albright, and was the said suit then prosecuted to' effect? We think not. The object of the parties had not yet been attained. Callison was no better prepared to make a bona fide title than he was when he gave the bond. He had not prosecuted his suit to effect and perfected the title.

This is the construction placed upon the bond by the court below. We think it obviously correct.

Callison, in executing this bond, in substance agreed to prosecute this suit to a successful termination, and obtain a decree perfecting the title; and it was agreed that Gray should pay the purchase money the next Christmas after such decree. It was proposed to prove, by verbal testimony of a witness, that it was agreed that Gray was to pay the said money the Christmas next after Callison & Albright should obtain a favorable judgment in the District Court, whether that should be the end of .the suit or not. Such evidence would have been at variance with the plain import, and in contradiction of the main object of the bond. In the case of Epperson v. Young, it was said that “parol evidence could be received to explain the language or terms used in a written contract, so as to understand what the parties really meant, but never for the purpose of varying or substituting another one to overrule and control the written contract.” (8 Tex. R., 136; Roberts v. Short, 1 Tex. R., 373.)

There is no allegation of mistake in drawing the instrument. Considering the terms in connection with the object of the instrument, it is not ambiguous. The object was to secure Gray a good title. The means stipulated for to accomplish this, was to prosecute this suit to effect and perfect the title. The date of the judgment or decree, by which this end should be accomplished, was fixed upon as the time from which interest on the purchase money should commence to accrue, and the first Christmas after such time the purchase money should be payable. If such a decree should be obtained sooner or later than the parties expected, or in a different tribunal (into which this same suit might be carried,) than that which they then supposed and spoke of, that nevertheless was the decree stipulated for. That was the main controlling intent of the parties. Therefore, we do not think the court erred in excluding the testimony offered.

Judgment affirmed.