| Tex. | Jul 1, 1857
Defendant in error brought a suit on a note for one hundred and sixty dollars, executed by plaintiffs in error and payable to him. Plaintiffs in error filed an answer, setting up a failure of consideration, which was held to be defective on demurrer. The only question in the case is, whether or not this answer contained a good defence to the action on the note.
The answer states that Elizabeth Blackburn, as the executrix of the last will and testament of Samuel S. Blackburn, which was a nuncupative will, contracted to make to Ann S. Hurt, one of defendants, a good and sufficient title to certain real estate, being two town lots, belonging to the estate of said Samuel S. Blackburn; that to secure the purchase money for said real estate, said Ann S. Hurt, and the other defendants, as her sureties, executed a note for eleven hundred dollars; that afterwards McReynolds being a creditor of the estate of Samuel S. Blackburn, Ann S. Blackburn procured defendants to execute this note, now sued on, for one hundred and sixty dollars, payable to McReynolds, and entered a credit for that amount on the note for eleven hundred dollars; that defendants, or either of them, have not been in possession of the lots, or received any rents or profits therefrom; that at the time of making the note, Elizabeth S. Blackburn was not such executrix, and had no power to make said conveyance; that she has not made or tendered to Ann S. Hurt any deed sufficient in law, and that none such has ever been received by her; that the deed, a certified copy of which is tendered and exhibited by plaintiff, was never tendered to or received by Ann S., and that the same is not a sufficient conveyance of the lots; that McReynolds, at the time he received the note, knew that it was made without any consideration; that defendants are ready and willing to pay upon the making of a good and valid title to the lots.
Upon general .demurrer these facts are admitted, which raised the question, whether or not, in an executory contract for the sale of land, the purchaser has the right to withhold the payment of the purchase money, upon showing simply that the vendor, from inability, has not made a good and sufficient deed to the
In the case of Cooper v. Singleton, (decided at Tyler, 1857, 19 Tex. R. 260,) the Chief Justice stated lucidly the distinction between the rights of the vendee in executory and executed contracts for the sale of land. “ The difference between the liabilities of the vendee under an executory and an executed contract is this, that in the former he should be relieved by showing the defect of title, unless on proof by the vendor, that this was known at the sale, and it was understood that such title should be taken as the vendor could give. In the latter the vendee should establish beyond doubt, that the title was a failure in whole or in part; that there was danger of eviction ; and also such circumstances as would prima facie repel the presumption that at the time of purchase he knew and intended to run the risk of the defeet.” In the case of executory contract, the knowledge of defect of title by vendee, must be alleged and proved by the vendor. In the case of executed contract, this (want of) knowledge of defect of title by the vendee, must be alleged and proved by the vendee.
“ It is familiar law, that the general principles of the contract of sale, both in England and in this country, recognize and enforce, while it is still executory, the right of the purchaser to a title clear of defects and incumbrances. This right is one, not growing out of the agreement of the parties, but which is given by law; and it naturally follows that a Court of Equity will not decree the specific performance of a contract when the title is bad, or even, as it has been said in modern times, where it is doubtful.” (Rawle on Covenants for Title, 566, and see notes on pages 605 and 699.)
A question very similar in principle to the one now before the Court, was determined in Illinois in the case of Mason v. Wait et al., (4 Scammon’s R. 127.) The Legislature had directed Sarah Mason, as the guardian of Martha Mason, a minor, to make sale of land under the direction and sanction of the Judge of Probate. She sold without such previous direction of the Probate Judge. These facts were pleaded in defence to the note given at the sale, and were held to be sufficient in bar of the action.
This decision is based on her want of power to sell without the co-operation of the Judge of Probate, which she had not obtained.
In the case before the Court now, it is alleged that Elizabeth
It is not stated in the answer, whether the sale was public or private, or what constituted the want of power on the part of the executrix, or the defect of title, nor is it shown why the deed was not sufficient. Still those facts are positively alleged, and the plaintiff below did not point out the defects in the mode of statement, by special exceptions'that were applicable; and hence the allegations, though vague and general, show sufficiently the want of title having been made. If said Elizabeth undertook to sell the lots at private sale, and bound herself to make a good title, and has not done so, and had not the power to make the contract, and has not since made a sufficient conveyance or tender of one, she cannot enforce a specific performance of the contract by enforcing the payment of the consideration money. And if McReynolds, as is alleged, had full notice of the failure of consideration, he stands in no better condition than she does. Judgment reversed, and cause remanded.
Reversed and remanded.