| Tex. | Jul 1, 1858
This suit, of trespass to try title, was instituted in 1856. The plaintiff, Emerson, claimed the land by regular chain of title down to himself. Defendant, Walker, claimed the same under a bond for title from Emerson to Izard, executed in 1841; a sale of it as Izard’s property, in 1844, under execution; and other conveyances down to Walker. It was shown that Izard went into possession and made improvements on the land, upon making the purchase; and that it has generally been occupied, though perhaps not constantly, by those holding under Izard’s bond, and never in the possession of Emerson, up to the time of the commencement of the action. Izard’s bond shows that a part of the purchase money was paid, and that a part remained unpaid, at the time of the purchase, to wit: A note of one hundred and sixty-five dollars, payable in twelve months from the 28 th September, 1841. Upon the trial, Emerson produced this note, and gave it in evidence. The execution, under
The Court charged the jury (1st) “ that to make out title under a sale by virtue of an execution, both the judgment and the execution must be in evidence, and the executions are no evidence of the existence of a judgment; and unless the judgment, by virtue of which the executions issued, is shown in evidence, the executions and the Sheriff’s deed amount to nothing as links in a chain of title.”
This charge is correct as a general rule, and particularly with reference to judgments in a Court of record. But with reference to the facts of this case, it was erroneous in this, that it precluded the jury from inferring the existence of a Justice’s judgment, shown by several executions, to have been rendered over ten years before the trial; it being shown that the Justice’s docket had been lost, after most diligent search, and it being shown that Walker had put tenants in possession and otherwise occupied, used and claimed the land under this execution sale, for nearly ten years; Izard setting up no claim thereto in the mean time. Under these circumstances, it was a natural presumption, not at all remote, that such a judgment, as that recited in the execution, really did exist, and therefore it should have been left to the jury as a fact to be determined by them, whether it did or not. (1 Greenl. on Ev. Sec. 46-7-8.)
In this connection it may be remarked, that it is not perceived upon what ground the Court rejected the deed from Izard to Walker; which was evidently designed to cure this apparent defect in his title. No ground of objection is assigned, nor does any appear. Under a general plea of not guilty, as pleaded in this case, it would seem reasonable that the defendant would have the right to fortify and cure the defects of the title under which he held when sued, by any releases and conveyances which he could obtain at any time before the trial.
Another charge, given by the Court, was (2d,) “ Where a party receives a bond for title, conditioned that he shall pay money at a particular time, he has no title until he pays the
The jury would most reasonably understand this charge to mean, that the failure of Izard to pay the purchase money when it became due, of itself put an end to his right, and that thenceforward he had no sort of right that he could transmit by sale. Indeed another part of the charge shows that this was the view taken by the Court below. The true position on that subject is, that the failure to pay the purchase money, when due, gave Emerson the alternative option, to sue on the note and subject the land, and other property, to its payment; or to bring a suit for the land, by which he could have ejected Izard from it, unless, perhaps, Izard should bring the money into Court, and claim a specific performance of the contract, not having repudiated it otherwise than by failure in point of time of payment. (Estes v. Browning, 11 Tex. R. 246; Hill v. Still, 19 Id. 76; 2 Story, Eq. Ju. Sec. 776-5.) The failure to pay the purchase money did not, of itself, annul the contract; but it gave Emerson, with certain equitable contingencies, the right to do so. He could waive this right, and let the contract stand.
A question here arises whether or not, by his failure to assert this right and repudiate the contract by reselling the land, or by suit, or otherwise, for about fourteen years, Izard and Walker being in possession of the land, using and enjoying it during that time, is not a waiver of his right so as to bar an action to recover the land ? (Hill v. Still, above cited.) By analogy to any statute of limitations, which we have in this State, his right of action would be barred in ten years, at furthest, after the default of Izard. If the possession of Izard and Walker was not adverse and continuous for ten years, then this rule might not prevail so as to bar Emerson’s right of entry and of suit.
It does not follow from this, that Walker could enforce a specific performance of the contract and obtain a title, in accordance with the bond, without payment of the purchase money in full. For it may happen that the laches of both parties may be so great, that a Court of equity would relieve neither of the parties, (2 Story, Eq. Ju. Sec. 734.) Apart, however, from any question of limitation by analogy, in relation to this subject, we think it was erroneous to instruct the jury that the failure to pay by Izard, absolutely and of itself, put an end to the contract.
The Court also charged the jury, (3d,) that upon Emerson
The fact of whether or not the note was paid was a question for the jury, and lapse of time, so long as fourteen years, was a circumstance which should have been left to the jury in determining it, notwithstanding the note was produced by Emerson. (1 Greenleaf, p. 49, Sec. 39.)
Other questions in the case need not be considered.
Judgment reversed and cause remanded.
Reversed and remanded.
Wheeler, J., did not sit in this case.