281 S.W. 299 | Tex. App. | 1926
The cause was tried to a jury, and at the conclusion of the testimony it was admitted by all the parties at interest that appellees were still due on the purchase contract on said lots the sum of $1,329.55. The court instructed the jury to return a verdict in favor of appellant, Jim Jones, Jr., for said sum against appellee Henry Adkins, and in favor of appellees against appellants for the title and possession of the land, free and unincumbered with any lien.
Appellant, Jim Jones, Jr., appealed, and contends that under the undisputed evidence in the record the trial court committed error in failing and refusing to instruct the jury to return a verdict for him canceling the contract of sale and quieting his title to the property. We sustain this contention. The only claim or interest appellees had in and to the property was by virtue of the contract of purchase and sale which they entered into with John F. Rowe in May, 1813, which was renewed from time to time, the last renewal being in January, 1920. Under the terms of said contract of purchase it is specifically provided that if appellees "shall make default in the payment of any two consecutive installments, or in the payment of any interest on said notes, then at the option of said John F. Rowe, or his assigns, said contract of sale shall be annulled, * * * and said Henry Adkins shall immediately surrender the possession of said premises, and all *300 payments made thereon shall be applied as rentals on said property."
Appellees admitted that they had not for more than a year prior to the time the suit was filed made any payment on said notes or been in possession of said property. Appellants lost possession by virtue of the fact that they moved from Waco and rented said property, and the tenant, without their knowledge, abandoned same and appellant took possession thereof while it was vacant, and has been in possession thereof since said time. It was agreed that the original purchase price of the property was $1,400, and at the time of trial there was still unpaid, principal and interest on said amount, the sum of $1,329.55.
It is a well-settled principle of law in this state that, before a party to an executory contract for the purchase of land can require specific performance on the part of the seller, he must have either performed his part of the contract or tendered performance thereof. Tayler v. Taul,
Appellees contend that they were entitled to possession of the property by virtue of the statute of limitation. This contention is not tenable. They do not claim any chain of title from the sovereignty. Their only contention is that they have been in possession for ten years. To obtain title by virtue of the ten-year statute of limitation, it is necessary for a person to have peaceable and adverse possession thereof for ten years. Article 5510, Revised Statutes. A party who goes into possession of property under a contract of purchase cannot claim the benefit of said statute until he repudiates the contract and claims title adversely to the real owner. Smith v. Lee,
The trial court, under the undisputed facts in this case, should have instructed the jury to return a verdict in favor of appellant Jim Jones, Jr., canceling and annulling and holding for naught the contract of sale which had been executed by John F. Rowe with appellees, and which had been assigned and transferred to appellant. The cause having been fully developed and the material facts being admitted, the judgment of the trial court is reversed and judgment here rendered canceling and annulling the contract of sale which appellees made with John F. Rowe, and under which they claim title, and quieting title in appellant to the lots in controversy, being lots 7 and 8, block 11, Farmers' Improvement Bank addition to Waco, McLennan county, Tex.; and the judgment of the trial court in rendering a personal judgment in favor of appellant against Henry Adkins is set aside and held for naught.