50 Tex. 287 | Tex. | 1878
The appellees unquestionably held the superior title to the land sued for, after appellant’s failure to comply with the terms of the contract for its purchase. But it does not follow that they were entitled to dispossess appellant without regard to the equities which appellant was entitled to by reason of his partial performance
The failure on the part of appellant to comply with the contract warranted appellees demanding the land; but it is equally clear that the court may deny them possession of it until they satisfy all the equities growing out of the contract in favor of appellant. This seems to have been the view, in part at least, taken of the case in the court below; but the .judgment fails to carry it into effect. The court, we think, correctly held appellant entitled to pay for his improvements in excess of the value of the use of the land; but it erred in not so framing its judgment that it would not be a mere nominal recovery by appellant of the amount adjudged him. That this might not be the result, it should have directed that no writ of possession should issue on the judgment in appellees’ favor until the amount adjudged the appellant should be deposited with.the clerk, to be paid by him to appellant, on his demand, whenever it appeared by the return of the sheriff that the writ of possession had been executed and possession of the land described in the judgment, had been restored to appellees.
For the error of the court in not securing to appellant the amount adjudged him for the value of his improvements, the judgment is reversed, and such judgment as should have been rendered, as above indicated, is here rendered.
Reversed and reformed.
