Peters v. Phillips

19 Tex. 70 | Tex. | 1857

Hemphill, Ch. J.

The main question in this cause is whether the instrument offered in evidence, and designated in the margin as a title bond, is such a bond or written agreement to make title to property as would, under Art. 1162, give jurisdiction to the County Court.

The jurisdiction of that Court, over the subject matter, is special, and can be exercised only where there is a bond, or the agreement to make title is in writing. Now literally, this instrument is not a bond to make title ; but it recites fully the terms and conditions of a contract to that effect, and by which Byers (the intestate whose representatives are charged as defendants in this suit,) undertakes and binds himself, on the performance of certain conditions by the Peters, to convey to them twelve hundred and eighty acres of his headright league of land. By a close construction/it might be held that this instrument was not of a character to give jurisdiction under the Article cited; but although it would seem that the object of giving the County Court authority, was to provide a cheap and expeditious mode of enforcing plain agreements, about which there was little or no dispute ; and although the resort to such jurisdiction, where the case, like the present, is severely contested, is deemed very injudicious, yet it would seem that the same rules to ascertain what may be included within the scope of the terms bond or written agreement, should be applied to the construction of the Article, that are recognized with reference to the promise or agreement or memorandum of a contract being in writing under the Act to prevent Frauds and Perjuries. This Act, in its first Section, Art. 1451, declares that no action shall be brought to charge a person upon a contract for the sale of lands, unless the promise or agreement, or some memorandum thereof shall be in writing and signed by the party intended to be charged, or by his agent lawfully authorized. Now it has always been held, under Statutes of similar import, in England and in the other States, that the written evidence 'required by the Statute, need not be comprised in a single document, or drawn up in any particular form. It is sufficient if the contract can be plainly made out in all its terms from any writings of the party or from his correspondence ; that the place of signature is not material; that the signature of a party as a witness to a deed which contained a recital of the agreement, was held sufficient, where it appeared that he knew of the recital. (Welford v. Beazeley, 1 Ves. Sen. 6 ; 1 Greenleaf Ev. Sec. 298.) That the receipt for the purchase money may constitute an agreement within the Statute; (1 Sugden on Vendors, 115.) A receipt stating that the vendor had received of the vendee a certain sum, being on account of a plantation on the Cypress, sold to him this day for $2,200, payable in different instalments as per agreement, was held sufficient compliance with the Statute of Frauds. (1 McCord, 425.) The receipt for the purchase money, in part or in the whole, has in all cases been held sufficient, where it specifies the terms of the contract, names of the parties, amount of the purchase money, &c.; and the reason is that there is so much of the contract in writing, that it can be enforced without the aid of parol testimony. (Brickman v. Brickman, 6 Blackford, 21 ; 4 Bibb, 466 ; 6 B. Monroe, 100.)

The instrument, in this case, shows clearly, And it appears fully by way of recital, all the terms of the contract by which, on the one hand,, the Peters’ undertook to locate. and clear out of the land office the headright certificate of Byers ; and he, on the other hand, bound himself to convey to said Peters’ twelve hundred and eighty acres, in two sections of the said tract or tracts of land, as the same might be located. The names of the parties, the terms of the agreement, the conditions and covenants, are fully stated ; and there is no necessity of resort to parol testimony to ascertain any of the essentials ; or, it would seem, any of the particulars of the contracts. Byers states that he is bound by the contract to convey the land. This concludes him and his representatives. The instrument showed sufficient evidence of the contract in writing, to have authorized a decree for specific execution, had suit been brought in the District Court; and we are of opinion, that although there is some difference between the terms employed in Art. 1162 and those used in the Statute of Frauds, yet that any such written evidence of a contract to sell property, as would authorize its specific execution in the 'District Court under the Statute of Frauds, will be sufficient to authorize the County Court to decree its execution. The policy of both of the provisions is that there should be written evidence of the contract, and that it should not be supported by parol; and where the former is offered, the object is accomplished ; and the law in either case must be held as satisfied. Upon the whole, we are of opinion that the contract was legitimately within the cognizance of the County Court, and that the suit cannot be abated for want of jurisdiction.

This point was not raised by the parties ; but being one of jurisdiction, its consideration and decision could not be avoided.

This instrument, or bond, and the patents—the land being located in two tracts—were filed several months after the proceedings were commenced in the County Court. By whom they were filed does not appear. The County Court, in its judgment, recites that there was satisfactory written evidence of the contract, and decreed for the plaintiffs,—on appeal to the District Court, the judgment was reversed, but on what grounds does not distinctly appear. From the affidavit on the motion for a new trial, it might be presumed that in the opinion of the Court, the evidence was insufficient, in this, that the contract to which there was reference was not produced. If so, there was error, as the evidence, in this particular, was, as we have shown, suficient proof of the terms of the agreement.

But it does not appear that any evidence was offered by the plaintiffs, of the performance of the conditions, locating the land, etc. • The record does not show from whose possession the patents came. The presumption from the argument of counsel is, that they were filed by Peters,—and there may have been a further presumption below, that as he had the patents in possession, he must have paid the charges and expenses.

But there being no evidence in relation to these facts, we do not feel authorized to enter the judgments which should have been pronounced below, and the judgment is therefore reversed and cause remanded for a new trial.

Reversed and remanded.