21 Tex. 121 | Tex. | 1858
The doctrine held by this Court, in repeated decisions, has been that obligations to make title, of the character of that from Wright to Fitchett, of the 24th of April, 1834, are executory contracts of sale, which do not have the effect of a conveyance to pass the title absolutely. (3 Tex. R. 473-4.) They evidence a contract of sale ; and they bind the obligor to make a conveyance, in case the obligee shall not make default in the performance of his part of the contract. But they do not pass the title absolutely. In case of the default of the vendee, the vendor may elect to abandon the contract, and recover back or alienate the land, upon giving notice to the vendee and his refusal to perform his part of the contract, although by its terms the making of the title and payment of the purchase money be not dependent covenants. (Browning v. Estis, 11 Tex. R. 237, and cases cited.) The Court therefore erred in the charge to the jury, that the effect of the instrument of the 24th of April, 1834, was that of an absolute deed or conveyance. The evidence would have well warranted the jury in finding that the price had been paid, especially after so great a lapse of time, and that thereby the title became vested absolutely in the vendee, Fitchett. But that was a question for the jury. If it had been left to them to decide, under instructions to the effect that if the purchase money was paid, the title became absolute in the vendee, and he had the power to sell and convey the title to the plaintiff, there would have been no ground to disturb the verdict.
The objection that the Act of Partition, of the 19th of December, 1833, was not admissible in evidence, because not recorded, may be obviated by having it recorded in the proper county before another trial.
As the case must be remanded, it does not become necessary to decide upon the effect of the evidence touching the question of possession, or title by limitation ; nor is it probable that it will become material upon another trial, as there can be but little doubt of the result upon the merits of the plaintiff’s title. The judgment is reversed and the cause remanded.
Reversed and remanded.
