104 F. Supp. 318 | E.D. Tex. | 1952
Plaintiff, a resident citizen of Louisiana, sues defendant, a citizen of Texas, for debt, alleging:
In 1942, plaintiff’s husband (now deceased) rented defendant a Texas plantation for 10 years beginning January 1, 1943, for a consideration of $15,OOQ, to be paid in semi-annual installments of $750 each, payabe on the first day of January and July of each year, commencing January 1, 1943. The contract was in writing and provided that failure to pay any four installments of rent when due should, at the landlord’s option, mature the whole. It further provided that all improvements placed on the property should belong to Pirkle.
The husband died testate November 5, 1948, while still a resident citizen of Louisiana. No administration of the estate has been had in Texas. Plaintiff, as heir and assignee, became the sole owner of the claim sued upon. The rents were paid for all periods prior to January 1, 1947, but from that time on have not been paid (aggregating, at the time of suit, $7,500). Plaintiff, exercising her option, now declares the entire amount due and sues for interest and attorney’s fees as well.
In his amended answer, defendant, while generally denying plaintiff’s allegations, pleads specifically that:
Shortly after the written contract, in consideration of the fact that defendant was desirous of making valuable and permanent improvements which he did not feel justified in making under the terms of the lease contract, Pirkle agreed to grant defendant an option of purchasing the land and improvements at any time during the lease by paying $20 per acre, against which sum defendant would be entitled to credit for all amounts paid as rent; upon payment of which Pirkle would execute and deliver a deed to. defendant (except 1/2 the minerals). Pursuant to and in reliance upon such oral agreement defendant made certain permanent improvements and improved the value by at least $10,000. After the making of such improvements, 'Pirkle notified defendant that he would not go through with the deal,' although the latter was and is ready, willing and able to do so. Defendant is entitled to an offsetting credit for the value of the improvements against the amount sued for.
Defendant also pleads limitation upon facts hereafter discussed.
Plaintiff moves for summary judgment on the pleadings on the ground that a contract
Art. 3995, subd. 4, Vernon’s Texas Civil Statutes, provides that no action should be brought upon any contract for the sale of real estate or lease thereof for more than one year unless the agreement he in writing. Section 5 makes the same requirement as to action upon agreements not to he performed within one year. '
An oral option to purchase land or contract whereby the owner agrees with another that the latter shall have a right to buy the property at a specified price within a designated period of time is rendered unenforceable by the statute of frauds.
Since the written lease provided that the improvements should belong to the landlord, no valid -claim for them could arise
Passing now to defendant’s plea that the action is barred by the Texas four year statute of limitation.
Art. 5538 of the Texas statutes provides that in case of death, limitation shall cease to run for one year after such death “unless an administrator or executor shall have sooner qualified according to law upon such deceased person’s estate; in which case the law of limitation shall Only cease to run until such qualification.”
Does this statute mean that if an administrator or executor is appointed in another state, limitation again begins to run from that date even though there has been
A foreign executor or administrator cannot sue in this state without obtaining new letters here.
At common law, once limitation began to run, it continued to run after death of the person to whom the cause of action had accrued and Art. 5538 (suspending limitation for one year or until the qualification of a legal representative), was enacted to change the rule since there was no person capable of suing.
Since, therefore, Pirkle’s executor had no standing and could neither sue nor be sued in Texas, there was no executor or administrator within the meaning of the statute. Limitation was suspended, therefore, for one year and this action is not barred.
There being no dispute as to any material fact, plaintiff’s motion for judgment on the pleadings will be granted.
Counsel for plaintiff will submit judgment accordingly within 10 days. The Clerk will notify counsel of the entry of this memorandum.
. 20 Tex.Jur. 288, Sec. 78; Michael v. Busby, 139 Tex. 278, 162 S.W.2d 662; Watkins v. Arnold, Tex.Civ.App., 60 S.W.2d 476.
. Defendant cites Warner v. Texas & P. Ry. Co., 164 U.S. 418, 17 S.Ct. 147, 151, 41 L.Ed. 495, and Thbuvenin v. Lea, 26 Tex. 612. Both cases, however, deal with Section 5 of Art. 3995 — dealing with agreements which might be performed within one year. In the Thouvenin case also there was a specific agreement to pay for the improvements. While the court further says that, even without an agreement, the owner would have been liable for the improvements, if beneficial to him, there was no written agreement, as here, that the improvements would be the landowner’s property.
. Michael v. Busby, supra; Hargrove v. Edmont Hotel Co., Tex.Civ.App., 125 S.W.2d 415; Ickert v. Minor, Tex.Civ. App., 22 S.W.2d 741.
. Becton v. Dublin, Tex.Civ.App., 163 S. W.2d 907, 910.
. Cf. Miller v. Gray, 29 Tex.Civ.App.. 183, 68 S.W. 517.
. 37 C.J.S. Frauds, Statute of, § 225, p. 726.
. Art. 5527, subd. 1, Vernon’s Texas Civil Statutes.
. It is stated in defendant’s brief that - the Louisiana executor qualified on November 12, 1948, and continued to serve until after July 10, 1950. Plaintiff does not dispute this.
. 14 Tex.Jur. 636, See. 796. Letters testamentary may be granted to a foreign executor under Art. 3365.
. Hicks v. Shively, Tex.Civ.App., 137 S. W.2d 102.
. 14 Tex.Jur. 640, Sec. 798.
. 14 Tex. Jur. 644, Sec. 801.
. Wm. J. Lemp Brewing Co. v. La Rose, 20 Tex.Civ.App. 575, 50 S.W. 460.
. Van Wormer v. Gallier, Tex.Civ.App., 19 S.W.2d 354 and authorities therein cited.