Knight v. McReynolds

37 Tex. 204 | Tex. | 1873

Ogden, J.

The most material question presented in this record for adjudication, is in regard to the legality or illegality of the note sued on; and the only clause in the note which is claimed to be illegal is that which prescribes the time of payment, and which is “ six months after the ratification of a “ treaty of peace between the Confederate States and the “ United States.”

The general rule in regard to the time specified in any executory contract, for its execution or performance, is that where the time is fixed, either absolutely, or by necessary relation to facts stated, so as to be either morally or physically certain, that is sufficiently definite to support a contract. But where the time for the performance of a contract, or the payment of a note, is so indefinitely stated as to render the time intended uncertain, or where an impossible time is stated, the courts will not attempt to enforce such a contract, because of their inability to do so at all, or with any degree of certainty; but it may be contended with much plausibility, that the simple statement of any time for the performance of a contract could not be considered malum in se, or in any manner criminal, so as to vitiate that contract on account of its illegality.

But this particular question has on several occasions been the subject of consideration by this and other courts, so that we can hardly look upon it as still an open question. In the case of Gaines v. Dorsett, 18 La., 563, Judge Talliferro, in announcing the opinion of the court, said : “ We conclude “ that the parties meant, by the term fixed for the payment, “the termination of the war * * * We cannot infer “ that the obligation is null on the ground that it is contra “ bonos mores, because the contracting parties thought proper “ to fix the time of payment one day after the treaty of peace.” In Shaw v. Trunsler, 30 Texas, 390, Thompson v. Houston, 31 Texas, 610, and in Scott v. Atchinson, decided at the last term, the same question arose, and in each case this court, either directly or indirectly, held the same doctrine announced in 18 La. An. Reports ; and therefore we simply announce what we believe a settled question, in saying that the time as stated in the note sued on for the payment of the same had direct reference to the close of the then existing war, and did not vitiate the note, and especially, as was said in Shaw v. Trunsler, “ if “ the instrument itself even established no legal right, the “ answer of the defendant seems to admit an equity we are “ not inclined to frustrate.”

The appellee admits the purchase of the land, and that the note sued on was transferred by him in part payment of the purchase-money, and in equity he has no right to- hold the property purchased and refuse to pay the purchase-money. We are clearly of the opinion that, by the indorsement of the note in part payment for the land purchased, McEeynolds made the same his own obligation and promise to pay; and without an express agreement to the contrary, that note would be a lien upon the land in favor of the vendor. And this appears to have been the view taken of the matter by McEeynolds himself, for it is in testimony that, long after the purchase, he told several persons that the land was not fully paid for, and that this note was outstanding against it; and from these facts, we think, there can be no doubt that the note is a lien upon the land in full force. And as Dimmitt purchased pendente lite, and with full knowledge of the lien upon the land, he must be held as taking subject to that lien.

This suit was instituted more than six months after actual hostilities, between the contending parties in the late war, had ceased; and if we construe the cessation of hostilities as the actual termination of the war, then, under the authorities referred to, the note by its terms was fully due when suit was commenced, and the defendant’s demurrer on that ground should have been overruled. We discover no error in the rulings of the District Court upon the admission or rejection of evidence which, in view of this opinion, could affect the merits of the case; and as a jury was waived, and the cause submitted to the court upon the law and the facts of the case, the judgment of the District Court is hereby reversed, and this court, proceeding to enter such judgment as should have been rendered in the lower court, the clerk of this court is directed to enter up a judgment in favor of the appellant, and plaintiff below, for the full amount of the note sued on, and a decree foreclosing the vendor’s lien on the land described in plaintiff’s petition, and for costs, etc.

Eeversed and rendered.