Jones v. Hutchinson

21 Tex. 370 | Tex. | 1858

Hemphill, Ch. J.

There can be no doubt of the right of Hutchinson to lease the land contingently to Guy, and of Guy to rent to Moore. Hutchinson, as the vendee under an executory contract, had been put into possession by his vendor, the plaintiff Jones. The last of the several notes given for the purchase became due on the first of January, 1855, and no payments had been made except one thousand dollars on the-first note. But for aught that appears the vendee was still in possession, and the vendor had not, up to the time of renting, entered upon the land, or given notice to the vendee to quit,, or in any way indicated whether he intended to enforce or renounce the contract. He might have enforced it by suit oa the note, or for specific performance, and if so the continuing possession of the vendee would not have been tortious; and he would have had lawful right to make leases commensurate with his possession. There is no proof that Moore had any notice of the vendor’s intentions at the time of his renting the-place, or that in fact the vendor had determined on any particular course of acting. The mere fact that the last note had become due, could not operate as notice that the contract was at an end. The two notes previously due had either been paid or the default had been waived by the vendor, and the vendee suffered to continue in possession; and as there was nothing in the terms of the contract, or in the surrounding circumstances, which showed that time was of the essence of the contract, it would be but a reasonable conclusion that the vendor would waive the default and insist on performance by the vendee, and if so the latter might lawfully make leases and receive the rents, up to the time that the vendor would declare by some act or notice that the contract was at an end. Such might have been the inferences of Mr. Moore, who appears to have had no notice of the actual state of the title, or whether it would be enforced or abandoned by the vendor. He did not rent until the 14th February, 1855. Up to that time the vendor had given no notice nor taken any, nor was any taken until the commencement of this suit on the succeeding 20th of March.

Had the defendant Moore paid the rent up to the 20th of March before suit was brought, most clearly he could not be compelled to repay them to the plaintiff. He had not made such payment however, and the question is, whether he is liable to the vendor for these rents, and also for those accruing subsequent to the action. That the vendee, Hutchinson, was himself responsible for the rents from the time of his final default in payment of the notes cannot be questioned. In States where there are forms of action there is a diversity of decision as to whether the defaulting vendee can be sued in assumpsit for the value of the use and occupation, or whether he must be sued in trespass for the profits of the land. In most of the States the vendee can be made responsible for the mesne profits only as a trespasser. But in Alabama, New Hampshire, and in England, he maybe sued for use and occupation. (6 Johns. 46 ; 7 Pickering, 301; 2 Dana, 295 ; 6 N. Hamp. 234; 7 Ala. 817 ; 1 Sugden, 264, (in notes ;) Howard v. Shaw, 8 M. & W. 118 ; 12 Melson & Welsbry.)

But this distinction is of no consequence in this State, where there are no forms of action. If, on the facts, the party sued is liable, the plaintiff will recover judgment without regard to the form of the remedy, or to the distinctions between law and equity. The vendee who holds over after making default, or refusing payment, is responsible to the vendor for the profits, provided the latter disaffirm the contract and does not seek its performance. As a general rule a person cannot create a larger estate in lands than he has in himself, and the lease of a defaulting vendee cannot protect the tenant after notice of the default, and especially after the commencement of suit for the recovery of the lands. But in this case the defendant Moore alleges a special equity, that he not only had no notice of the plaintiff’s claim at the time of his renting, but that he then gave Guy a negotiable promissory note for the rent, which was not due at the time of the notice, and which might be transferred. If the defendant Moore had given a promissory note as alleged, and if this had been so transferred that he was liable in law to pay it to the holder at maturity, we are of opinion that he would not be responsible to the vendor for the rents. There would be no equity in subjecting him to this double burthen. It was by the negligence of the vendor, in not giving notice of his disaffirmance of the sale, that Moore was induced to rent from the vendee. He may have acted very imprudently in giving a negotiable note, but to subject him to a double payment would be to allow the vendor to take the advantage, at least not to suffer from his own negligence. But though the defendant Moore alleges his execution of the note, yet there is no proof in the statement of the execution or transfer of such note. The statement and special verdict are both meagre in their recitals of facts, and as the defence may have been sustained on some other ground than the liability of the defendant to a third person on the note, the making and payment of the note may have been omitted as unimportant facts. Upon the whole case, although we might have been better satisfied had judgment been rendered against Moore, yet as it is believed the justice of the case has been attained, we must decline to reverse the judgment. There is proof that the plaintiff received one thousand dollars from Hutchinson ; and that valuable improvements were made by both Hutchinson and Moore. The plaintiff has recovered judgment against Hutchinson, and there is no proof or intimation of his insolvency ; and that the plaintiff will be likely to sustain loss. By the plaintiff’s act Hutchinson had the apparent ownership, and tenants under him should not be made to suffer unless it was very clear that injustice would otherwise be done to the vendor. Upon the whole, we believe the judgment ought to be affirmed, and it is accordingly so ordered.

Judgment affirmed.