25 Tex. 313 | Tex. | 1860
The appellee, Manuel Travino Canales, sold to the appellants six labors of land, forming a part of the “ exidos ” of the city of Matamoros. 'A part of the purchase money was paid in cash at the time of the sale, and it was stipulated that the balance should be paid in three installments.
In one part of the indenture by which the sale and the agreement of the parties is evidenced, it is said, that Manuel Travino Canales covenants, &c., “that he is now well and lawfully seized of all and each of the said granted tracts or labors of land by regular chain or transfers of title from the honorable ayuntamiento of the city of Matamoros, all of which transfers are hereby passed and made a part of this conveyance.” In another part of the indenture the appellee covenanted “to cause to be done, made, executed and performed all and every act or acts and conveyance or transfers of title which may be necessary in form or essence fully to perfect and assure to the said Stillman, Belden and Mussina, their heirs and assigns, a perfect title of and to the said described lands from the original grantees of the honorable ayuntamiento of Matamoros.” In another part of the indenture the following language occurs: “ It is further covenanted and agreed by the said Manuel Travino Canales, that in case of failure on his part or his legal representatives to produce, furnish and assure to the said parties of the second part, their heirs or legal representatives, pei’fect and complete transfers of title to all and each of said labors herein before described, then in that event the said parties of the second part may deduct from the payments herein conditioned by them to be made, such sum or sums as may be the equal proportion and relative value of the said parcels or parts of parcels of land so failed to be conveyed and titles perfected, as compared with the whole of six tracts conveyed.” It is shown by the evidence that the vendor, Manuel Travino Canales, failed to deliver to the purchasers, Stillman, Belden and Mussina, any paper title of any kind, from the ayuntamiento of Matamoros to
We are of opinion that the court below erred in this view of the case. The district judge attached importance to the fact that the appellants had sold the land without full warranty of title, and intimates that his opinion might have been different, if the sale by the appellants had been a sale with full warranty of title. Let us suppose that the appellants had not sold the land, but had continued to occupy it as the owners; could they not have resisted the collection of the purchase money until their vendor had complied with his undertaking to furnish title papers ? And in the event of the inability of their vendor to furnish the title papers,
The evidence, which was introduced without objection, shows that the vendor admitted to the agent of the vendees, that he was under obligation, by the terms of the indenture", to furnish other muniments of title than those that had been furnished; and he stated that the titles from the ayuntamiento of Matamoros to the labors which had been occupied by Rebalcaba and by Catarina Vela, were in existence and he could procure them.
We are of opinion that by the terms of the indenture between the parties, the appellee was not entitled to demand payment of the purchase money of those portions of the six labors to which he had failed to furnish a complete chain of title. The judgment of the court below must therefore be reversed and the cause remanded for a new trial.
Ordered accordingly.
Reversed and remanded.