Robertson v. Cates

74 Tex. 408 | Tex. | 1889

Acker, Presiding Judge.

This suit was instituted on the 17th day -of August, 1885, by plaintiff in error against C. D. Cates, Mary E. Hale, Roena T. Cates, and R. R. McDaniel, upon the following promissory note, set out in the petition:

“ 8224.00. Six months after date I promise to pay to Jerome B. Robertson or order two hundred and twenty-four dollars, with interest at the rate of ten per cent per annum from date, this June 24, 1875. This note is given in part payment for a tract of land this day conveyed to Chas. D. Cates by Jerome B. Robertson, by his agent J. W. Colbert, and is to become due when a proper chain of title from the State to Jerome B. Robertson is placed upon the records of Wise County.

‘‘Chas. D. Cates.”

It was alleged that the note had been executed to plaintiff by Cates as-pare of the purchase money for a tract of land sold by plaintiff to Oates, the deed to Cates reciting the note as a part of the consideration; that-the other defendants were in possession of parts of the land, claiming-it; that they had full notice of the existence of the note and plaintiff's-lien when they went into possession of the land; that it was understood between plaintiff and Cates that the note was to become due when a proper chain of title from the State to plaintiff was placed by plaintiff upon the records of Wise County; that on the 7th day of August, 1885, plaintiff placed upon the record of Wise County a proper chain of title from the State to him for the land; that plaintiff owned the certificate by virtue of which the land conveyed to Cates was located, but the transfer of the certificate from the original grantee to him was lost before it was returned to the General Land Office, and the land was patented in the name of the original grantee; that after the conveyance toCates and the execution of his note, and ever since then, Cates declared that all he wished was a conveyance from the original grantee or his heirs, and that it was immaterial when plaintiff procured the same; that he would pay off the note whenever such conveyance was placed upon record; that if plaintiff has been guilty of any laches it was because of the statements and representations of defendant Cates that it was immaterial to him when the condition of said note was complied with by placing the chain of title upon record.

By special exception Ho. % defendant Cates set up “that said original petition shows upon its face that the pretended cause of action of plaintiff' set out in said petition is long since barred by the statute of limitation.”

The exception was sustained, and plaintiff declining to amend,.the suit was dismissed and judgment rendered against him for costs, from which he prosecutes this writ of error.

The only assignment of error is: “ The court erred in sustaining the-special exception Ho. 2 of defendant C. D. Cates.”

For the purpose of testing the demurrer the allegations of the petition are to be taken as proved. The contract sued on must be construed in accordance with the intent of the parties thereto as that intent is disclosed by the language of the instrument. The construction placed upon the contract by the averments of the petition is not at all inconsistent, with the ordinary signification of the language employed in expressing the contract. The note reads first to become due absolutely at six months, and then to become due when the chain of title is placed upon the record. Cates certainly intended to acquire thfe title to the land, and Robertson intended that he should do so, otherwise he would not have accepted a, note for the purchase money which he could not enforce payment of until he had procured and placed upon record the title. It appears from the petition that the note was not to become due according to the intent of the parties until the chain of title was placed upon the record, which was. done ten days before the suit was brought, and it also appears that the delay in placing the title upon the record was with the consent and acquiescence of the defendant Oates.

We think the cause of action set out in the petition was not barred and that the court erred in so holding.

We are of opinion that the judgment of the court below should be reversed and the cause remanded.

Reversed and remanded.

Adopted June 18, 1889.