Secrest's Executors v. Jones

| Tex. | Jan 15, 1868

Hamilton, J.

This case is now here, for the second time, on appeal from a judgment rendered in the district court of Lavaca county. When it was here before it was brought by appeal from the county of Fayette by the present appellant, and was decided by Chief Justice Wheeler, at the Galveston term, 1858, and reported in 21 Texas, p. 121. The clear and comprehensive view of the questions involved in the case, presented in the opinion then delivered, leaves this court in this hearing but little labor.

The only error which caused the former reversal by this court was, that in the former trial in the court below the presiding judge held that the conveyance of the 24th April, 1834, from Wright to Fitchett, was an absolute conveyance of title, and that the question of the payment of the purchase money was not a question for the jury; whereas the instrument was only evidence of a contract of sale, and bound the obligor to make a conveyance in case the obligee shall not make' default in his part of the contract. The court in its opinion proceed to say: “ 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 payment of the purchase money may not be dependent on covenants.” (Browning v. Estis, 11 Tex., 237" court="Tex." date_filed="1853-07-01" href="https://app.midpage.ai/document/estes-v-browning-4887909?utm_source=webapp" opinion_id="4887909">11 Tex., 237, and cases cited.) “ The court, therefore, erred in the charge to the jury, that the effect of the instrument of the 24th April, 1824, was that of an absolute deed or conveyance.” And the opinion of the learned chief justice says further: “ The evidence w-otid 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.”

In the trial and judgment from which this appeal was taken, this fact of payment of purchase money from Fitchett to Wright for the land in controversy was distinctly in issue, and was found in favor of the appellee, and, we think, upon testimony fully justifying such finding.

The objection made on the former trial to the deed of partition of the 19th December, 1833, because it was not of record in the proper office in the county of Colorado, has since then, and before the last trial, as was suggested in the former opinion of this court, been fully met. It appears from the transcript to have been recorded in the county clerk’s office of Colorado county on the 1st day of April, 1858.

There is a remaining question, relating to finding of the jury for damages for use and occupation of the property in controversy for want of certainty. It is true that the verdict, of the jury did not, in terms, specify the amount in dollars, but they did what is in law equivalent to specifying the amount, by saying that the appellee, who was the plaintiff below, shall have and recover of the appellant $8 per month, from the date of the commencement of the suit to the rendition of the verdict. In law, what can be made certain is not liable to the objection of uncertainty.

We can see no error in the rulings and judgment of the court bélow, and it is therefore

Affirmed.