Case No. 5325 | Tex. | Jul 1, 1885
It does not seem to be disputed but that the contract between Smith and Roberts called for a valid and warranty title to the land in Tennessee, derived by Mrs. Roberts under the will of her father. Indeed, this is the construction placed by this court upon such words as were used in this contract, in describing the character of deed that the appellants were to make to Smith for the Tennessee land. Vardeman v. Lawson, 17 Tex., 10" court="Tex." date_filed="1856-07-01" href="https://app.midpage.ai/document/vardeman-v-lawson-4888586?utm_source=webapp" opinion_id="4888586">17 Tex., 10.
At the time of making the contract the parties supposed that the appellants could convey a perfect title to the land, and did not know that Mrs. Roberts’ interest was subject to the life estate of her mother. They contracted under this mutual mistake of facts, and -it was the clear intention that only an absolute conveyance of a perfect title could have been contemplated by them.
It was the duty of the appellants to discharge the note sued on according to the agreement between the parties — to tender a good and full title to the land so soon as it was appraised. It was not the duty of the appellees to perfect the title in Roberts and wife, or to see that the interest of Mrs. Roberts xvas properly appraised. If an imperfect title was offered them they were not bound to receive it, and when it became certain that it xvas out of the power of the appellants to conxmy a good title, then the appellees were authorized to bring suit upon the note. The contract xvas one xvhich Roberts and xvife could discharge at maturity by conveying a fee-simple title to the Tennessee land. In case of a failure to do this, the right of the appellees to enforce the payment of the note in money became absolute.
They did not tender any title whatever down to the date of the commencement of the suit, nor did they doxvn to the date of the judgment tender such a title as Smith xvas bound to accept. They offered no deed whatever till they pleaded to this action, and then, instead of a deed conveying a fee-simple title, they tendered one conveying an estate in remainder after the determination of a life estate ■ in another. Upon no principle of law or equity xvere the plaintiffs below deprived of their right to recover upon the note by the tender
There is nothing in the point taken that the payment of the money had been indefinitely extended by what occurred between Smith and Roberts about the time the note fell due. At that time neither of the parties supposed that Mrs. Roberts’ title to the land was not a perfect title. The extension was asked because Roberts could not give a description of the land in his deed for want of the field-notes. The extension was therefore given for the purpose of allowing him time to procure a description of the land, and lasted no longer than xvas necessary for that purpose. It would be unreasonable to suppose that either party had in view an extension for the purpose of allowing the appellants time to prepare and offer an imperfect title to the land, or that it would have been given, had it been known that such was the only title the appellants would have to offer at any time. As this was the character of title finally tendered, we cannot see what importance can possibly be attached to the supposed extension. _ .
The note sued on was payable six months after date without interest. It is settled law that where a contract bears an agreed rate of interest from date, it will bear the same rate after maturity. But it has never been held that if a note expressly provides that it shall carry no interest from date, that interest shall not be calculated upon it after maturity. It would require an express contract in plain terms to this effect, or the circumstances should clearly demand such a construction, to deprive the payee of his interest on such a contract after it became overdue. “ When expressed, the words used by the parties determine their rights; and, if they require construction, this is generally, if not always, in favor of interest.” 2 Pars, on Bills and Notes, 392.
The meaning of the present note is the same as if the words “ without interest ” had not been used. In that event it would have borne interest from maturity, but not from date. The parties to the note were making a settlement and agreement in which six months were to be allowed to the makers of the note to perform their part of the stipulation. It was important that the makers should have such reasonable time within which to ascertain the value of the land with which the note was to be discharged, and to
What we have already said as to the extension claimed by the appellants disposes of that point so far as it affects the question of interest. The jury, under the charge of the court, found that no postponement had been agreed to by Smith, and this finding is fully warranted by the facts. Even if the extension had been given, we have seen that its purposes were never fulfilled by the delivery or tender of a sufficient deed. Hence, we think, the appellants should pay interest as if no extension of tijne had been allowed — that is, from the maturity of the note.
There is no error in the judgment, and it is affirmed.
Affirmed.
[Opinion delivered April 28, 1885.]