49 Tex. 433 | Tex. | 1878
It is evident the court below must have regarded this action as, in effect, a suit for the rescission of a contract for the sale of land. And if such was its real character, the parties would have been entitled, on their proper presentation by their pleadings, to have had an adjustment of their respective equities, so as to do complete justice between them in respect to the contract sought to be rescinded, and all matters connected with and growing out of it. (Terrill v. DeWitt, 20 Tex., 256; Thomas v. Beaton, 25 Tex. Supp., 321; Harris v. Catlin, 37 Tex., 581.)
But if such was the nature of this case, the judgment in
But obviously this action as brought by appellant cannot be properly treated or regarded as an action for the rescission of a contract for the sale of land. On the contrary, it is strictly an action of trespass to try title and recover possession of the land, based no doubt upon the plaintiff’s supposed right to abandon the contract because of appellee’s failure to comply with its terms and stipulations. Whether the facts are such as entitle him to maintain the action as thus brought, need not be now considered. Appellee, by his amended answer and the evidence adduced on the trial, seems to have virtually admitted that there had been such default on his part as would warrant a rescission of the contract; and evidently the court so regarded it. There is nothing in the record, however, to justify or call for the rescission of the contract, unless it is appellee’s failure to pay the purchase-money in accordance with the stipulations of the contract. Such being the fact, the court erred in treating the case as a suit for rescission; for evidently appellee could not have brought an independent action for the rescission of the contract on the ground of his mere failure, or even inability, to pay the" purchase-money as he had undertaken. Mor can we see that the fact of appellant’s abandoning the contract, and blunging an action for the recovery of land upon his superior legal
That the vendor, when the vendee is in default, may sue for the land, has been settled in this State by a long train of decisions, the substance and effect of which are believed to be clearly, though briefly, stated by the present chief justice in the case of Wilkins v. Emerson, 20 Tex., 706, as follows, viz.: “The true position on that subject is, that the failure to pay the purchase-money when due, gave Emerson the alternative option to sue on the note and subject the land and other property to its payment, or to bring suit for the land by which he could have ejected Izard from it, unless, perhaps, Izard should bring the money into court and cláim a specific performance of the contract, not having repudiated it otherwise than by failure in point of time of payment. (Estes v. Browning, 11 Tex., 246; Hill v. Still, 19
The judgment is reversed and the case remanded.
Reversed and remanded.