9 Tex. 129 | Tex. | 1852
From the terms of the covenant of John W. Smith with Joseph Baker and the circumstances which transpired between the date of its execution and the commencement of this suit can the aid of a court of equity bo invoked for a specific performance? or should the plaintiff be left to compensation in damages if any for its breach? This is tlie inquiry presented for' our consideration, and the fact that tlie land in question has been sold by tlie administrator of Smith under an order of sale made by the Probate Court, and the proceeds of that sale only, and not a conveyance of the land, is now .«ought, cannot divert our inquiry whether a specific performance ought under the"circumstances to be decreed if the land hud not been sold. Because if it would not, then the plaintiff has no right to (he fund he is seeking to have applied to his use.
I will examine first the objection presented on the face of the covenant. It seems to me to want au essential element in its structure to give it effect either against tlie maker or his representatives; it is wautiug ‘in not showing a valid consideration, and it wants mutuality. Smith is bound by it when it imposes no corresponding obligation on Baker.- Chauccllor Kent says that “It seems to be very generally and very properly laid down in the books that “a court of equity will never decree performance when the, remedy is not “mutual, or one party only is hound by the agreement.” (Parkhurst v. Van Cortlandt, 2 Johns. Chan. R., 282,) and lie refers to Arringer v. Clark, Bunb., 111; Troughton v. Troughton, 1 Ves. R., 86; Lawrenson v. Butler, 1 Sch. & Lef., 13; Bromley v. Jeffres, 2 Ves. R., 415. The chancellor assorts the same principle in Benedict v. Lynch, 374, same volume cited, and says that a contrary doctrine had been held in some cases in England, but that
This is not however the ground on which I am instructed by my associates to-rest the decision of the court. We believe that our decision eau be placed more, sat isfaci orily on the intrinsic merits of the case, admitting that the covenant ought (o liave been specifically performed, and that it was a fair subject for the exercise of equity jurisdiction to compel such performance had the application been made within a reasonable time after the covenant had been, broken, or after the time when Baker could have demanded performance from-Smith. But if a party having rights will slumber on them for years, he need not be surprised when he wakes up to find that other rights have intervened to prevent the enforement of his own. Both courts of law and equity turn an-il uwilling .ear to those who show no vigilance in the assertion of their rights. By the covenant 'Smith was hound to convey to Baker as soon as the survey had been made. It appears from the record that this was done 1st June, 183S, and (lie patent to Smith bears date Oth Jane, 1841. The salt was brought to the Spring Term of the court,ISIS.
"What effect, this lapse of time, near ton years, should have on the equitable rights of the plaintiff will now lie considered. It is an acknowledged rule o£ equitable, jurisprudence that a party entitled to a specific conveyance of property, personal or real, will not be, permitted to bold back from an assertion of his* rights and speculate upon the chances of such changes as may decide whether It would he to his interest to have the conveyance made, but lie is required to be vigilant and prompt in flic assertion of those rights; and if change-- have, occurred during this lapse of.time in the value of the property to he com eyed, or in the consideration to he paid, a court of equity will always refuse its aid and leave the party to seek redress wlicro tlie law bad left him,, by a suit, for tlio breach of the covenant. Now it is a matter of history, and the fact s Í oo are established by the record, that for wars after this contract was entered into such was the uncertainty of the G-ovcrunicnt’s being able to sustain iiself, and tlie Indians were so troublesome in the neighborhood of ,81111 Amonio, that land was considered of very little value, and many would liave preferred an unlocated certificate to the best land in the vicinity of that place, belli 011 account of (rading it better and affording ail opportunity to locate in a neighborhood promising greater security. If the. covenant had been then satisfied, S111it.l1.could liave located other lauds of nearly equal value to the land which is t lie subject of this suit; but now an unlocate.d certificate would afford to his representatives no such advantage; tlie laud has appreciated near tenfold, and it would he wholly impossible to decree a specific performance upon any known principle of equity and do justice to the. representatives of Smith. This state of things could not have occurred had Baker, in the language of Lord Kenyon, (quoted by the master of the rolls in Milward v. Thanet, 6 Ves. R., 720.) '‘shown himself ready, desirous, prompt, and eagar” in the assertion of his rights. We therefore come to the conclusion that a*specific performance cannot be decreed.
There, is another aspect in which tins case may be presented that would bring us very satisfactorily to tlie same conclusion. It is an old and well established rtlie familiar to equity jurisprudence that lapse of time will create a presumption that the parties have waived or settled their rights, and such stale claims when brought into a court of cliaucery are received without favor-and. entitled to hut little consideration unless attended with circumstances that will repel such presumption. This doctrine will he found laid down by Chancellor Kent in Ellison v. Moffat, (1 Johns. Chan. R., 46.)and in Ardens’ Ex’ors v. Ardens’ Ex’or. (Id., 313.) It will be found to liave been uniformly acted upon and recognized by the court of chancery in South Carolina, (Riddlehover v. Kinuard, 1 Hill Ch., 378,) and in Sims v. Autrey, (4 Srobh. R., 117,) Chancellor Dargan, in giving the opinion of tlie appellate court affirming the decree of Chancellor Dunkin'made on the circuit, uses the following strong
But suppose the case where there was no person in the actual possession of the land to which title was sued for, it maybe, doubtful whether either the five years that to the possessor gives a liar or the ten years that bars an entry would either of them apply; 'and if cither, which one. If the legal title should be considered as giving a constructive possession, perhaps the five years; if not, it is difficult to perceive how the ton years could apply to such a caso. If we had a statute of limitation that was express in barring the action, or one analogous, such limitation would lie a good defense, without resorting to any olheral tending circumstances. If we have none, express ov analogous, it would seem that we could Ifiy down the rule as to the time ourselves, (An-
There is another head of equitable jurisprudence that there can be no doubt had a common origin with all laws of limitation. We mean laches and neglect. 3Ir. .Justice Story says: “If lie (the party) has been guilty of gross ladies, or if “•he applies for relief after a long' lapse of time, unexplained by equitable e.ir- “ ctitnsianees, his bill will be dismissed, for courts of equity do not, any more “ than courts of law, administer relief to the gross negligence, of suitors.” To this rule. lie says, there is some qualification. (2 StoryDq., 771.) The qualification M-etns to be tills, that although there may have been ladies, yet, if a part 1ms been performed or paid, tluibill will not be dismissed, but the defendant. will he decreed to refund, to malve compensation, or to a specific performance. What ladies will be sufficient to defeat the equity depends upon circumstances. In the case cited, by Chief Justice ITcmphill, in Hemming v. Zimmerchitle, (4 Tex. R., 166,) the plaintiff had notice, that defendant had abandoned it is contract, did not. lile his hill for nearly a year afterwards; the delay wits held to lie. unreasonable, and the, bill dismissed. (Watson v. Reed, 1 Russ. & Myl., 236; 4 Pet. R., 311.) In the caso cited from 4 Tex. It. the court say: "In the cases generally whore the effect of ladies has been the “ subject of discussion the contract had not been fully executed by either party, “and Pne one against whom relief was sought had indicated by his acts or “expression ; Ids intention to disavow or abandon the contract.” ■ In the. case •miller coiifiiloralioii the obligee had nothing to do. If the exchange liad been made ¡i"'¡vea!ily to the contract títere would have been a full performance and execution of die, covenant; it it. was not made cadi party would have been in the same condition they were in before, as each would have the same land; anti when Smith indicated by his acts suchas a failure to convey as soon as the surrey had been made and lire taking out. tie> p-itent in his own name, ih • obligee, Baker, if lie wished to compel its o.nfor,- meiit, then should haw commenced suit. At all events, when Smith took th- patent in his own ltattf, and from that period, laches may bo imputed to him. it is, however, contend'd on the part of the appellants that Smith became the trustee for Baker, and held the land in trust, for him, and that it was a continued trust. The correctness of the principle is admit ted, if títere was nothing for Baker to do. But it. is material to inquire he v I mg, under the circumstances of this case, tli * (rust continued. In the *■■;,■ before, cited from 4 Tex. It. the court uses Urn following language : “in this ease, the vendee having performed ills “obligation, the. vendor’s subsequent possession or interest in the land was “held in trust, and in subordination to the superior equitable right of the “ vendee, and this possession would continue to maintain its fiduciary character “until the vendor would manifest an intention to claim and enjoy the land ¡is ■“his own. The possession would then become adverse.” To apply the prin-cipie : when Smith failed to make the conveyance, and took (lie patent out in his own name, the trust was at an end, ami he held adverse to Baker.
When tin1 circumstances, as presented by the. rerord in this ease, arc considered, they so strongly conduce, to prove that (he contract, had been mutually abandoned, that we have no hesitation in saying Unit such evll'iice, unrebut-ted, would have sustained a verdict of a jury for the defendant, had a suit been brought, on the obligation to recover damages for its breach. We will recapitulate tlie strongest, of this circumstantial evidence; it is the long acquiescence of Baker; the patent, recorded in the public archives of the <infry, which all persons are bound (o (alee notice; Baker's being a clerk in the land office; liis silence as to any right to the land or claim upon the estate when Vande.rlip told him that lie. was indebted lo the estate., which lie admit tod; the death of Smith and Baker, culling oil' the probability of better proof, before, this suit was commenced. And the record presents nothing on the part of .the appellant to rebut and explain this prima facie evidence of an abandonment. The judgment of the court below is affirmed.
Judgment affirmed,
