| Tex. | Mar 5, 1880
The superior title to the land sued for remained in the heirs and representatives of the estate of Whitfield, and their petition showing that fact was sufficient to support an action for the recovery of the land, unless it also disclosed some legal or equitable defense.
The legal title of the estate carried with it a legal right to the land, and in asking the enforcement of that right appellant sought no equitable relief.
The averments of the petition show that the recovery of the land is sought for, not for the purpose of rescinding the contract and enforcing a forfeiture of payments made, but for the purpose of compelling either the performance of the contract by the payment of the balance of the purchase-money, or the return of the land.
Whatever may have been the laches of the representatives of the estate of Whitfield in enforcing a lien on the land, it was inequitable in the purchaser, or any one standing in her stead, to retain the land without making full payment. If the defendant relies on the partial payments, and the election and efforts to collect the balance, as entitling him to the privilege of paying the balance and holding the land, the petition proffers him that privilege. Those facts, or the laches of plaintiff, give him no right, legal or equitable, to retain the land discharged from all demands of Whitfield’s estate.
It may be that the partial payments, in connection with facts excusing the failure to make further payments, might entitle defendant to some equitable relief sought by him, and accompanied by a proffer on his part to do equity to plaintiff. In order to entitle himself to equitable relief, defendant must himself do equity.
The case now before the court differs from the case of Harris v. Catlin, 37 Tex., 581" court="Tex." date_filed="1873-07-01" href="https://app.midpage.ai/document/harris-v-catlin-4891685?utm_source=webapp" opinion_id="4891685">37 Tex., 581, and from the case of Thomas v. Beaton, 25 Tex. Supp., 321, in that in both of those cases the appellants had sought equitable relief, and could only obtain it on the terms of doing equity. It differs also from Roeder v. Robson, 20 Tex., 754" court="Tex." date_filed="1858-07-01" href="https://app.midpage.ai/document/roeder-v-robson-4889103?utm_source=webapp" opinion_id="4889103">20 Tex., 754, and from Estell v. Cole, 52 Tex.,
If there was any weight in the objection that the administrator, under the statute in force at the time suit was brought, should have obtained an order of the Probate Court before instituting an action of trespass to try title, that statute had been repealed, and afforded no grounds for sustaining the exceptions.
Because the court erred in sustaining exceptions to the petition, the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered March 5, 1880.]