134 S.W. 754 | Tex. App. | 1911
The material question for our consideration is whether or not the provision relative to the erection of a $10,000 residence upon the property in question should be regarded as a covenant or a condition subsequent. If the former, then upon the breach thereof appellant would have his action for damages, and, if the latter, then the right to rescission and cancellation of the deed would exist upon failure to comply therewith. The evidence showed that appellant owned 100 acres of land adjoining the tract in controversy upon which there were no houses or improvements, and that he would not have sold this tract to appellee but for the fact that appellee agreed, in addition to the payment of the $5,000, to begin the erection within 12 months thereafter of a $10,000 residence, and appellant testified that this was the principal inducement for the sale thereof to him.
Appellant contends by his assignments that the evidence did not conclusively establish that the provision with reference to the erection of the residence was a mere personal covenant, and that, therefore, the court erred in instructing a verdict in behalf of appellee. It is insisted, however, on the part of appellee by his counter proposition, that, notwithstanding the fact that he contracted to begin building a house upon the five acres of land described in the petition within 12 months from May 21, 1908, and notwithstanding the fact that he breached said contract by failing to begin the erection of said house within said period, said breach did not forfeit the grant or vest in appellant any legal right to recover the five acres of land, because the stipulation to build said house was a covenant, the breach of which gave rise to an action for damages, or for specific performance, and not a condition subsequent, the breach of which was legal grounds for rescinding or forfeiting the grant. We believe that the record sustains the contention of appellee. If, as insisted by appellant, the agreement on the part of appellee to begin the erection upon the land conveyed within 12 months of a $10,000 residence was a part of the consideration for the conveyance, and if this consideration had been recited in the deed, still we do not think that this would have given appellant a right to rescind. The grantor did not make or attempt to make the failure on the part of his grantee to erect said building a cause for forfeiture or rescission of the contract. It is true that the deed reserved a lien to secure the payment of the purchase money, but it will be observed no lien whatever was retained in the deed to enforce the obligation with reference to the erection of said residence. The appellant had the right to have inserted such a clause, but, having failed to do so, it seems to us the presumption would obtain that he intended to rely upon his contract, a breach of which would merely authorize a suit for damages.
In the case of Ry. Co. v. Titterington,
In the case of Moore v. Cross,
In the case of Mayer v. Swift,
In Byars v. Byars,
It will be remembered that there are no provisions or conditions inserted in the deed before us, nor in the preliminary agreement or contract. So that in this case, in the absence of any such provision or condition for re-entry, we hold that the court correctly instructed a verdict in behalf of defendant.
Finding no error in the judgment, the same is affirmed.
Affirmed.