| Tex. | Jul 1, 1855
The questions presented by the record, which are deemed to require notice, are, 1st. Whether there was error in the refusal of the Court to strike out the part of the plaintiff’s replication and answer to the defendant’s amended answer and interrogatories, indicated in the motion of the defendant ; 2nd. Whether, upon the facts of the case, the plaintiff was entitled to the relief sought.
The defendant, in his amended answer, had set up new matters of defence ; and, in support of them, made reference to a letter, alleged to have been written by the defendant, stated a part of its contents, made it the basis of a charge of fraud, drew from it certain conclusions adverse to the plaintiff’s case, and annexed to his answer interrogatories to the plaintiff touching the authenticity of the letter. The matters of defence, set up by the answer, rendered a replication on the part of the plaintiff proper; and, instead of filing a replication to the new matter, and then making a separate answer to the interrogatories, the plaintiff replied to the new matter by an answer, under oath, to "the new matter pleaded, and to the interrogatories ; thus making his answer subserve the double purpose of pleading and an answer to interrogatories. This, perhaps, was irregular; but the answer was not excepted to on that account. But the defendant filed a motion, in which he indicated a part of the replication and answer of the plaintiff to the interrogatories, which he proposed to retain, and to detach and strike out the rest; retaining, not merely so much as was a direct response to his interrogatories, but all which contained statements and admissions which he deemed would sub-
But if the defendant had moved to strike out all the plaintiff’s answer, which was not in direct response to his interrogatories, still, we think, his motion may well have been refused. The letter was necessarily connected with the controversy between the parties. It was one circumstance in the history of that controversy. It was the right of the plaintiff, when interrogated as to the writing of the letter, to state the circumstances which led to and were connected with the writing of it. To do this intelligibly, so as to show its true interpretation and bearing, he was under the necessity of giving a history of the entire controversy to which it related. Just such a case we may suppose to have been in the mind of the Legislature when, after requiring the party interrogated to “ simply confess or deny the fact,” they extended the right of reply beyond a catagorical answer, by declaring, “ but the party may “ state such other facts tending to his defence, as are closely “ connected with the fact on which he has been interrogated.” (Hart. Dig. Art. 737.) Under a similar provision in the Code of Practice of Louisiana, where one of the plaintiffs, who was called upon to acknowledge or deny his ancestor’s signature to a deed and agreement, admitted it, but added that these docu
In the present case there had been a protracted controversy and a series of efforts to compromise. Several letters had been written with that view, of which this was one. Prom some expressions used, one conclusion sought to be drawn was, that there had been a rescisión of the contract on which the suit was brought. To show that no such rescisión had taken place, and that such was not the meaning of the expressions used in the letter, the plaintiff stated the occasion of writing the letter, gave a history of the entire controversy to which it related, and stated the fact of the defendant’s continued possession and enjoyment of the consideration he had received of the plaintiff for entering into the contract. There is no part of the answer which is not more or less intimately connected with the letter. But if the connection of all its parts were not apparent, still the Court did not err in refusing the motion, for the reason before stated.
Upon the remaining question, whether, upon the facts of the case, the plaintiff was entitled to recover, we see no cause to hesitate. That the parties contracted to exchange lands; that they thereupon executed, each to the other, his bond for title ; that the defendant went into the possession of the bond of the plaintiff; that he afterwards received a conveyance from the plaintiff, and sold the land, and that he, and his vendees have continued in the undisturbed possession, and have an indisputed and indisputable title; and that the defendant has not conveyed to the plaintiff the land contracted to be conveyed by him • that he has refused and still refuses to do so, and persists, by every means in his power, in resisting the plaintiff’s right; are facts indisputably established by the record. And it would seem that they are amply sufficient to entitle the plaintiff to have a conveyance decreed him.
But it is insisted that the plaintiff cannot now have a specific performance of the contract, because, when making an ineffectual attempt himself to obtain a rescisión of it, he made a voluntary conveyance of the land to one Sterling. It is proved, however, indisputably, that Sterling had full knowledge of the defendant’s right; that he never made any claim or pretention of right under his conveyance ; that it was without consideration ; that if he ever could have asserted title under it, his right has long since been barred by limitation ; and, in a word, that this conveyance is and was from the beginning utterly worthless, and was so regarded. It is true that, after making the contract, the plaintiff became apprehensive, and, it would seem, not wholly without cause, that the defendant could not make him a good title; and that he thereupon refused, for a time, to perform his part of the contract, declining either to make a conveyance or to accept one from the defendant; and sought anxiously to be released from his bargain, and to ob
It may be true that the plaintiff is justly chargeable with having acted with folly. But surely no act of folly with which he may be chargeable, nor his refusal to accept a conveyance at that time, could release the defendant from the obligation of his contract, or from the duty to make a conveyance when afterwards required, after he had accepted of the plaintiff's conveyance. His having tendered a deed at one time, which was refused, did not release him from the obligation to deliver it when afterwards requested. While holding the plaintiff to the performance of his contract, the defendant was bound, at all times, to be ready to perform on his part.
It was objected to the plaintiff's conveyance, that it was a quit claim deed, and not such an one as by his contract he was bound to make. But the answer to this is, that it was accepted by the plaintiff without objection, and has answered all the purposes contemplated by the contract. If it were such, (which, however, does not appear by the record, otherwise than by the statement of a witness, who might easily be mistaken, after so great a lapse of time, and that the deed is not copied into the record is not the fault of the appellee, and should not operate to his prejudice,) it is quite too late, now, for the first time, to raise that objection.
Finally, it is objected that the plaintiff did not make his selection of the half league, of which he would have a conveyance, within the time limited by the contract. The utmost that the defendant can claim from this failure, was that the plaintiff had lost his privilege of making the selection, and that he should himself select which half he would retain for himself. This he did, settling upon and improving the part he chose to reserve for himself, and leaving the plaintiff no option, but to take that part which remained unoccupied. Nor indeed does the defendant, now, nor has he, since he accepted the plaintiff's
There are other objections urged to the judgment, but they are not deemed of a character to require notice. We are of opinion that there is no error in the judgment and it is affirmed.
Judgment affirmed.