19 Tex. 76 | Tex. | 1857
This is an action to recover 1434 acres of land, a part of the headright of appellant, situated in Red River county. The facts, proven on the trial are, that in 1838 the parties entered into the following agreement :
Republic op Texas, Bed Biver County : Memorandum of a contract made and entered into between Abner Hill of the one part, and George W. Still of the other part, both of the county and Republic aforesaid, witnesseth, that the said Hill, for and in consideration of the obligation of the said
The said Still, on Ms part, obligates himself to pay or settle four hundred and twenty-five dollars with John Williams, on or before the first day of January, 1839, and also to give said Hill one-third of a league of land, to be selected by said Hill; and the said Still is to be at all expense in surveying, clearing out of office, etc., and as soon as convenient after a grant can be obtained from the Republic, to make or cause to be made a good and sufficient title unto said Hill to said land. It is understood by the parties, that the third, of a league herein' mentioned is a claim containing two-thirds of a league and one labor, and if the selection of the land should be such that it could not be divided equal as to quality, then and in that case it is to be divided agreeable to quantity and quality, so that the said Hill is to have an equitable quantity in the proportion of one-third of a league to one-third and one labor on the other side.
In testimony whereof we have hereunto set our hands and seals this 24th day of October, 1838.
ABNER HILL, [Seal.]
Attest: GEO. W. STILL, [Seal.]
Henry Trimble.
Benjamin Wheat.
Received on the within agreement, by G. W. Still’s note, four hundred and twenty-five dollars, this 31st January 1839.
$425 00 ABNER HILL.
J. W. WILLIAMS.
Still went into possession of the land and has retained it until the present time. Early in 1839 there were some cabins, a tolerable good fence, and about twelve acres in cultivation (by whom the improvement-was made is not stated.) Still has since put in cultivation about one hundred acres, done at various times. The rent of such land in the same neighborhood is from two to thr&e dollars per acre. A patent was issued to Hill for the land in 1841, which was read in evidence. Cook, witness for defendant, stated that in the year 1843 or 1844, Still offered to place in the hands of Hill, certificates to be located, out of which his claim for one-third- of a league should be satisfied ; he did not make a tender of the certificates, but said he had them. Hill said he had once made a selection of land, to which Still replied that if he, Hill, would remove the obstruction he had placed on the land he had selected, that he, Still, would have it legally located and surveyed. The obstruction referred to was that Hill had located the land he had selected, with certificates in the name of Joshua Hill, Ms son. Hill told Still that Harmon, the surveyor of Lamar county, said the land selected by Hill was subject to relocation, because the certificate by which it was located had been declared fraudulent. McLamore’s certificate had been located on the land and was rejected by the traveling Board (of Commissioners) and afterwards, on the 6th of April, 1842, he filed Ms petition in the District Court of Red River county to establish his right to the certificate, and a final judgment rejecting two-thirds of his claim to a league
In December, 1846, Hill filed his petition, setting up this contract, and asking a decree of specific performance of the contract, or a rescission and for damages.
Still pleaded performance as to the payment of the money, and that he had located a certificate on the land selected by Hill, and had it surveyed, and paid for surveying, government dues, etc., and that the certificate having been rejected, Hill had located the same land, by which he had been prevented from performing the contract; and offered to perfect the title to the land, if Hill would remove the obstruction, or to place in the hands of Hill two-thirds of a league and labor of certificates, out of which Hill could obtain his land ; and prayed for a decree of title to the land sold to him under the contract.
In 1852 Hill filed an amended petition, setting up title to the land (1434 acres) and alleging trespasses thereon by Still since October, 1848, and that praying Still be ejected and pay damages for rents and profits. At the same Term, defendant by amendment answers that he had paid the money which was the “principal consideration” in the sale of the land, and.that after Hill had made the selection, he had located it himself
The record shows no action of the Court upon any exception to the pleading. At March Term, 1857, the cause was tried, and on a general verdict for defendant Still, a judgment was rendered simply that Hill take nothing, etc., and pay costs. A motion for new trial was made because the verdict was contrary to the law and evidence, and one upon which the Court could not do justice to the parties, being general and not referring to any one of the variant pleas ; which motion being overruled, Hill gave notice of appeal.
Appellant assigns for error, that the verdict is contrary to the evidence and charge of the Court; and that the Court erred in overruling the motion for a new trial.
There is no question as to the facts, that the contract of sale was made for the land (1434 acres,) that Still entered under it, and has continued to the present time ; that he has partly performed his part of the contract by paying the money; and that he has not performed the other part which required him “ to give said Hill one-third of a league of land, to he
What are the legal consequences of such non-performance, is the question in dispute. That must depend, first, upon the meaning of the contract at the time it was entered into ; and, secondly, upon the conduct of the parties referring, to and affecting it.
The contract is the same in legal effect as a penal bond, in ordinary form, to make title to" land when the purchase money shall be all paid or any other act shall be done beneficial to the vendor. The draftsman of the contract collated all the obligations of each party, in distinct parts of the same instrument ; by which the alternative obligations to pay two thous- and dollars, or make title to the 1434 acres of land, are blended in the same sentence, and together made dependent on the same condition. A literal interpretation might lead to the conclusion that Still must perform every part of his obligation, just as stipulated, otherwise the whole obligation on the part of Hill would be a mere nullity, conferring no legal or equitable rights. Such could hardly have been intended. Still would not likely purchase a home and from time to time bestow his labor and expense in improvement, and pay several hundred dollars on it, at that time in Texas, with such a forfeiture of it all hanging over him, if he failed to make title, under all circumstances, to a particular tract of land not then selected and perhaps not surveyed. He did not literally perform his contract as to the money ; he stipulated to pay it on
The next question then is, Were there any circumstances connected with the conduct of the parties, which might constitute an excuse for the non-performance ?
If the leading consideration of the sale was the money, and the furnishing a certificate and paying expenses, etc., on the third of a league was an inconsiderable part, not looked to as of much importance at the time by the parties, then its nonformance would be compensated in damages, and would not cause a rescission of the contract. (York v. Gregg, 9 Tex. R. 86.) The evidence does not disclose anything on this subject.
Again ; if the defendant Still did endeavor in good faith to fulfill his contract, by having the land surveyed, &c., and the certificate located on it proved to be bad, and Hill, without giving Still a reasonable opportunity to secure the land,(located on it himself, and Still in a reasonable time thereafter offered and was ready to secure the land, and Hill thereby prevented him from fulfilling his contract, then Still might be excused for non-performance, by paying the necessary expense of securing the land, with interest, as damages. The force of this excuse for non-performance would be greatly increased by acquiescence of Hill. (11 Tex. R. 247, directions for reforming case of Estis v. Browning.) And, upon the same principle, though Still had failed by his own negligence, and Hill chose
Such are the circumstances tending to excuse the non-performance and establish thereby a verdict for the defendant. But what sort of a verdict ? Had the charge of the Court
The cause must be reversed and remanded for further pro • ceedings.
Reversed and remanded.