174 S.W. 717 | Tex. App. | 1915
It is the contention of appellant, by proper assignment of error, that he was not bound under the contract to consummate the purchase unless the vendor had a good record title to convey to him, and therefore, under the facts, he was discharged of the agreement. It is the contention of the appellee that the contract does not stipulate for a good record title, and that he had a right to show that he had acquired title by adverse possession. A construction of the contract is therefore decisive of the case, in view of the admitted fact of limitation title only in the vendor. According to the language of the contract, the vendor agreed "to deliver an abstract to the land," which was "to be sent to Newman Phillips for examination" at a time "not later than January 1, 1914." The purchaser was to pay over the purchase price at the date of January 1, 1914, "on delivery to him by G. C. Glass of said deed duly executed and said abstract." The rights of the parties should be determined by the practical meaning ascribed by them to the language employed by their contract. Contracting, as the parties did, for an abstract of the title to the land, and that it should be sent to an attorney of the purchaser for examination, comprehends the purpose of the parties that the abstract exhibited should be subject to reasonable examination and approval by the purchaser. A provision that the abstract should be first sent to an attorney "for examination" would be meaningless unless construed as words intended to be appropriate to a condition that if after reasonable examination by the attorney the abstract exhibited failed to show a good title in the vendor, the purchaser was not then bound to consummate the purchase and should not forfeit his earnest money. There would be no necessity for an "abstract to the land" unless it was for the purpose of exhibiting a record title. As ordinarily used and understood "an abstract" is simply a compilation in abridged form of the record of the title. In this meaning of the term, as commonly understood, such construction of the contract should be adopted as would require an abstract showing a good record title. Anything less than this would not satisfy the term and carry out the implied intention of the parties. The terms used by the parties exclude, it is thought, any expectation on the part of the purchaser that there would be offered to him a title by limitation, depending, as it does, upon facts outside of and independent of the records. In the absence of adjudication in some way, a title by limitation is not settled.
Had the abstract as exhibited been subject only to the objection that it was not free from incumbrance or cloud, it may have been, as contended by appellee, that he had within the meaning of the contract tendered a marketable title. And appellee might have a title by limitation such as would constitute a good title in law, but the terms of the contract here do not include or contemplate such *719 character of title. The decision here is upon the latter ground.
As the construction here given the contract should have been given it by the trial court, the judgment is reversed and here rendered in favor of appellant, with all costs.
