Milliken v. Townsend, 16 S.W.2d 259

Milliken v. Townsend

16 S.W.2d 259 | Tex. Comm'n App. | 1929

HARVEY, P. J.

On May 29, 1924, the ■ plaintiff in error, M. W. Townsend, and the *260defendant in error, Mrs. 'S'. G. Milliken, .a feme sole, entered into a contract in writing duly executed by both parties, whereby the latter, in effect, promised to convey to Townsend her home and certain household effects therein, and, in consideration of the above promise of Mrs.' Milliken, Townsend promised to convey to Mrs. Milliken the homestead of Townsend and his wife in the city of Dallas and to pay a stipulated sum in cash to Mrs. Milliken and to assume a specified indebtedness which was outstanding against her said property. After abstract of title had been furnished by Townsend to Mrs. Milliken, as provided in the contract, and the title to the Townsend homestead was approved by her agent, Mrs. Milliken ¡ repudiated the contract for the reason that her daughter objected to the sale. Townsend was at all times ready and willing to carry out his part of the contract, and, within the time contemplated by the contract, tendered performance of his several promises, including the offer of a general warranty deed which purported conveyance of his said homestead to Mrs.'Milliken, which deed was duly executed and acknowledged by Townsend and his wife. The tender not being accepted by Mrs’. Milliken,' Townsend, in due time, brought this'suit against her for specific performance of the' contract, and also to recover the difference between the rental value. Of the Milliken property and that of the Townsend homestead from the time Mrs. Milliken repudiated the contract. In his petition, Townsend again offered full performance of his promises,' and, at the trial, produced in court the above-mentioned general warranty deed to his homestead. At the time the contract'was made'Townsend and his wife resided on the property covered by said deed and continued thereafter to reside thereon as their home and were so residing thereon at the time of trial. Mrs. Townsend is not a party to the. suit, but she testified as a witness at the trial, and identified the last-mentioned instrument as being her act and deed.

The contract imposed mutual obligations on the contracting parties. Although Townsend was unable to perform his promise to convey to Mrs. Milliken the homestead of himself and wife, unless his wife consented to the conveyance, the promise nevertheless constituted a legal obligation. This obligation was capable of being performed by Townsend, and of being specifically1 enforced against him, when the legal obstacle to pei*-£onuance was removed. Goff v. Jones, 70 Tex. 572, 8 S. W. 525, 8 Am. St. Rep. 619. When Mrs. Townsend supplied her consent to such conveyance in the manner prescribed by law, as she did, the legal obstacle to performance of Townsend’s obligation in that respect was removed. Having then, become able to per-, form his contract' in all respects, and being ready and willing to do so, Townsend was entitled to demand specific performance of Mrs. Milliken’s obligations under the contract. Tison v. Smith, 8 Tex. 148; 5 Pom. Eq. Jur. (2d) § 2194. His offer in this suit, of the deed duly signed and acknowledged by himself and wife, furnished the court with the means of giving Mrs. Milliken, by appropriate orders respecting delivery of the deed and possession thereunder, the benefit of performance by Townsend of his obligation to convey to her his homestead. No reason appears for refusing to ascribe to the deed the verity and legal sufficiency as a conveyance which its terms imply. For aught that appears in the record. a delivery of the instrument under the direction of the court will invest Sits. Milliken with title to the property as effectually as if a delivery thereof were made by both grantors in person. No suspicion is sffggested, as to the validity of the instrument, by either pleading or proof. Its effectiveness as a conveyance when delivered, is not in anywise brought in question.

Mrs. Townsend is not a necessary party to this suit. The only interest she has in the obligations of Mrs. Milliken, which are sought to be enforced, is in community with her husband. He is empowered, in behalf of the community, to sue for the enforcement of these obligations without the joinder of his wife in the suit.

Counsel for Mrs. Milliken insist that Townsend has an adequate remedy at law, in that a breach of Mrs. Milliken’s obligations under the contract affords him cause of action for damages. This legal remedy is regarded in equity as inadequate when the subject-matter .of the contract sought to be specifically enforced is real estate. 1 Pom. Eq. Jur. § 221; 4 Id. § 1402. A different rule is not to be observed in cases where, as is the case here, both real estate and personal property constitute the subject-matter of the entire contract. 36 Cyc. 564, and authorities' cited.

' All other questions raised by counsel have received consideration, and no valid reason is found for denying Townsend the specific performance sought by him, upon his performing his part of the contract under the direction of the court, as he offers to do.

We recommend that the judgment of the 'Court of Civil Appeals reversing the judgment of the trial court, and remanding the cause, he affirmed. ,

CURETON, C. J. The judgment of the Court of Civil Appeals is affirmed, as recommended by the Commission of Appeals.