13 Tex. 484 | Tex. | 1855
The plaintiff in error, in urging reasons for the reversal of the judgment, contends that all of the defendants were at least proper and some of them necessary parties, and that it would be clearly erroneous to dismiss on joint demurrer as to all of the defendants, because some of them might not be proper parties. That some of the defendants, as for instance the heirs of Joseph House, were not, to say the least, necessary parties, is quite manifest. But it will not be necessary to examine the point as to misjoinder of parties, as we apprehend the petition was dismissed, not on that ground, but for the want of sufficient matter in the allegations of the plaintiff. The judgment recites that the matters alleged by the plaintiff were not sufficient in law or equity to entitle him to the relief demanded, and it was therefore decreed that the demurrer be sustained. Our inquiry then, will be as to the legal sufficiency of the matter set forth in the petition.
This suit, at least the relief prayed for, is double, viz: for specific performance, and if that be impossible, then for damages on the covenant of defendant. Both objects could not be* embraced in one suit where law and equity are administered in different jurisdictions. A suit for specific performance in equity could not be converted into an action for damages on breach of the contract; at least this could not be done, unless in some special cases; and on the later authorities it seems doubtful whether it can be done at all. Dart, in his treatise ®n vendors, p. 459, says that at one time there was a floating idea in the profession, that the Court might award eompepsa
Judge Story, in Ms Treatise on Equity, Sec. 798, is of opinion that a bill might be retained and an issue of quantum damnifieatus or an inquiry before the Master awarded, in eases where no adequate remedy lies at law, for compensation or damages, as for instance, where there has been a part performance of a parol contract, and the vendor has sold to a leona fide purchaser without notice; in such case the decree for performance would be ineffectual, and the breach of the contract, being by parol, would give at law no compensation or damage, and where the only effectual remedy would be to allow dam-. ages to him in equity.
The question of assessing damages in equity, where specific performance is impossible, is quite distinct from compensation in its usual meaning, which is often given where specific performance is awarded, on the account of delay or improve - ments, or where the quality and quantity of the land has been misdescribed, and where the defect or failure «fee., has been such as to admit of complete compensation. The general rule is, that damages must be sought at law, and specific performance in equity. But this has no proper application, where the jurisdictions are Mended, and where, therefore, both objects may be embraced in the same suit, and where consequently the prayer may be in the alternative, and where, if one relief fails, the other may be awarded, if on the principles of law or equity, either the one or the other can be granted. But whether there be two actions or but one, and whether they be brought in the same or in different Courts, the principles by which they are to be governed, and the rights of the parties determined, are fixed in law, and are to be applied according to the nature of the relief, whether legal or equitable, which is demanded.
We will consider in the first place, whether the plaintiff' under the facts, could sustain am action for the recovery of the penalty of four thousand dollars, or for the damages which might be assessed on a suit for such penalty. And most clearly, no such action could be maintained. Before a party brings a suit at either law or equity, for either specific performance or damages, he must have performed all the precedent or concur
The deed by Sheppard was to have been made within twelve months from the agreement, and the right of action on the penalty accrued to the plaintiff on failure, at the expiration of that time—the lapse of four years completing the bar. More than six years had elapsed from the original breach, before the commencement of suit. The statute has been set up by the demurrer, and the judgment of dismissal as to the demand of the four thousand dollars is clearly sustained by the law.
The remaining question is, whether the suit for specific performance can be maintained. The plaintiff has made some effort to show that performance was impossible, and that consequently relief of that description could not be granted. This was done, perhaps, under a mistaken idea of his rights, and that he was still entitled to the penalty, or for damages to be assessed on that penalty. This we have shown to be a mistake, the cause of action accruing on the original breach. Whether, after the bar was complete at law as against a suit for damages on the original breach, the deceased or his representatives have done any act which would disable them from performing in equity, if at that time the plaintiff was otherwise entitled to such relief, does not appear from the allegations in the petition.
As we can only consider, on demurrer, the petition as it re
Regarding this suit as- simply one for specific relief, there is the same objection to the petition which was previously noticed when viewing it as an action at law, viz: that the time of crediting the eight hundred dollars, or otherwise the time of paying the purchase money, is not specifically expressed.
-The credit should have been given before the expiration of twelve months. It must have been entered before Sheppard could be required to execute the deed. If it were not in fact entered, but Sheppard had had the benefit of the agreement, the judgment not being enforced, and other circumstances which would be equivalent to an actual entry of credit, these circumstances should have been stated. By a very liberal construction of the terms of the averment, it might be held that the credit was given at the proper time; that such was the meaning of the allegation. This interpretation is perhaps admissible, and especially where the defendants are in Court, and would be prepared to show that the act had not been performed according to the contract, if such were really the fact. If this were a proceeding ex parte, or if against unknown heirs, the allegations of the plaintiff would be construed with more strictness than when against parties who are present and can defend themselves.
It is possible that the defects of this averment were not considered below, and that the judgment was based on the whole of the petition, as well the averments stricken out as those retained.
The great difficulty in the case is, that the plaintiff desired to recover damages and not the land, and he attempted by allegation to depreciate the title of Sheppard, and to show that a conveyance could not now be made according to the terms of the agreement. Most of these averments have been aban
Lapse of time has been pleaded against a specific performance in this case. The mere lapse of time has not been sufficient, of itself, to deny relief. The delay of the plaintiff may or may not, when the facts are ascertained, defeat his relief. If the credit was entered at the proper time, then ten years, or more under some circumstances which may be imagined, as, for instance, when the vendee goes into possession under the contract, must elapse before specific relief would be denied. If he has not performed the condition on his part, according to its time and terms, then he is not entitled to relief, unless he can show that the other party has not been damaged, and can satisfactorily account for the delay. If the plaintiff be not in default, the time that has expired will not defeat Ms claim to equitable relief. He may be defeated, if he has not registered his conveyance, and conveyances by deed have been made to innocent purchasers without notice. He may suffer from the effects of lapse of time; but this lapse will not of ife
We are of opinion that the demurrer cannot be sustained as to the whole of the petition, of - to all of the equitable relief therein demanded; and it is therefore ordered that the judgment be reversed and cause remanded.
Reversed and remanded.