Ury v. Houston , 36 Tex. 260 ( 1872 )

Walker, J.

The plaintiffs in this action below brought an action in the April term, 1859, in the District Court, against Mrs. B. T. TJry, Eli Townsend, and others. The plaintiffs claim under a grant made to Lovick P. Dikes, in 1835. At the commencement of the suit the plaintiffs set up.claim to eleven hundred and ninety-five acres of the Dikes grant, through Mrs. Dikes, and two shares of four hundred and fifty-six acres each, purchased from two of the heirs.

At the November term, 1867, Mrs. Ury and Townsend each filed pleas setting up the statute of ten years’ limitation, each acknowledging possession of and claiming six hundred and forty acres of the Dikes grant.

The plaintiffs replied to Mrs. Ury’s plea that W. T. Blythe had purchased from them the six hundred and forty acres claimed by her, for her use; that she claimed title under them, and was in law estopped from denying their title; that the land claimed by her is the land sold to Blythe for her use; and that the same covers her improvements and is her homestead. They further aver that they have made a title bond to her for the land, taking the note of Blythe for the purchase-money. And by an amendment to their petition, filed on the 2d of November, C. M. Houston claims to be the owner of one-half of the Dikes grant. He avers a sale to Mrs. Ury of six hundred and forty acres, and asks no judgment against her. The action is dismissed as to all the defendants on the land, and the cause is continued for partition.

At the November term, 1868, the plaintiffs filed an amended petition, alleging that they were the owners of two thousand eight hundred and fifteen acres of the Dikes grant, and that one Garretson, who was a non-resident, owned eleven hundred and seven acres. They prayed for citation against him, and demanded partition.

At the October term, 1869, the plaintiffs moved for judgment against Mrs. Dry, and that her plea of limitation be stricken out". Mrs. Dry had demurred to the petition; the court overruled her demurrer, and entered an order striking out the pleas of general denial, not guilty, and ten years’ limitation filed by her.

On the day following this order, Mrs. Dry filed substantially the same pleas, which were again excepted to, but the exception was overruled. On the same day, the cause was tried to a jury, who returned their verdict for the plaintiffs, for two thousand eight hundred and fifteen acres of the land; the judgment was against Mrs. Dry, and in favor of the plaintiffs, for the six hundred and forty acres claimed by her. Commissioners were appointed to make the partition, and a writ of possession was awarded.

It is shown by the statement of facts that the plaintiffs read in evidence the Dikes title, which bears date November, 1835; the day of the month is not given, though the survey is dated on the 11th of the same month and year. They also read in evidence deeds from Mrs. Dikes and two of her children for two thousand and ninety-eight acres of the land, in the aggregate, and they show no title for any more than this amount, though by the verdict and judgment of the court they recover two thousand eight hundred and fifteen acres. One-half of Mrs. Dikes’s interest was conveyed to Mrs. Nancy" Houston, and the other half to her husband, C. M. Houston. The title bond from plaintiffs, dated August 4th, 1859, was read in evidence, and in connection with the bond the note given by Blythe, of the same date with the bond, for two thousand dollars. This bond recites the commencement of the suit in Hopkins county, against Mrs. TJry and others, settlers on the Dikes league and labor; that the suit was commenced by the plaintiffs to establish a perfect title; that the suit as to Mrs. TJry is to be dismissed ; and covenants that if Houston and wife shall establish by a decree of the court, or other proper tribunal, the Dikes title, they are then to make a good and warranty title to six hundred and forty acres of the land, to Mrs. TJry; but upon their failure to establish such title, both the bond and the note were to be null and void; and the bond recites that Mrs. TJry is not to interfere to postpone or delay the plaintiffs in their efforts to make a title to the Dikes grant. The bond is signed by O. M. and Haney Houston alone, and the note is signed by W. T. Blythe alone, and the note also recites a part of the condition of the bond, specifying that it is the consideration for six hundred and forty acres of land, sold to Mrs. Domina T. TJry by Houston and wife, and the note by its terms is not to become due until the Houstons are able to make a good and valid title to the land.

On the 7th day of Hovember, 1868, the Houstons served on Blythe and Mrs. TJry a notice to the effect that they were ready and willing to convey, by deed of special warranty, the six hundred and forty acres of land of the Dikes grant described in the bond of August 4th, 1859. There was evidence to prove that Dikes left a widow and three children, who were living in 1865. Mrs. TJry proved, by Daniel Jordan, that he lived as a renter on her place, and was also her agent, prior to the year 1857 or 1858, about 1855. When he first went to live upon the place, there were sixty acres of land improved, with some old cabins upon it.

There are numerous exceptions to the ruling of the court, some of which we deem it immaterial to notice. We think there was error in striking out the pleas of the defendant. She was not estopped from setting up title to the laud, other than through the plaintiffs, unless it was clearly shown that she was claiming under the title bond of August 4th, 1859; that she had authorized the purchase by Blythe, or had adopted and approbated it after its execution.

There was error in admitting in evidence the certified copy of the deed from Stovall and wife, without accounting for the original, nor showing that the original had been proved for record.

There was error in admitting the deed from McDonough, as the administrator of Lilly, to E. M. Bagby, as it was not shown that McDonough was such administrator; and without an order of court showing the confirmation of the sale, the deed not reciting it.

• It was error to admit the title bond and note of August 4th, 1859, it not having been first shown that Mrs. Ury had adopted the acts of Blythe, or had authorized him to act for her in the premises.

It was error to admit certified copies of the deeds in evidence, the originals not being accounted for, nor the proper notice of filing the same given.

It is questionable whether the original title to Dikes should have been admitted in evidence without some explanation of the want of a proper date having been first given. The survey being dated on the 11th of ¡November, 1835, and the Land Offices having been closed only two days afterwards, and the title having no date of the day of the month, are circumstances which would require some explanation to free the title from grave suspicion.

¡Notwithstanding the notice served upon Mrs. Ury and her brother, W. T. Blythe, that they were ready and willing to make a deed with “ special ” covenant of warranty, this notice will avail them nothing. Mrs. Ury, upon the supposition that she was a party equitably bound by Blythe’s contract, was under no obligation to accept such a deed. The bond called for a deed of general warranty, and the Houstons did not propose to make such a deed; nor does it'appear from the record that they have ever tendered such a deed, and this may be the result of a knowledge on their part that the Dikes title is materially deficient. The effect of the judgment in this case is to disaffirm the contract between Blythe and the Houstons, and in this the judgment is erroneous.

The Houstons have never been in a situation to put Mrs. Ury in default, and there are three reasons prominently disclosed by this record why they should not be allowed to have this contract canceled, if it were true that Mrs. Ury is claiming under it; and if she is not claiming under it, and should not be found legally nor equitably bound to claim under it, it was error to rule out her pleas.

First. They have made their election to affirm the contract, and enforce specific performance, by bringing their suit in personam against Blythe, on the note.

Second. It is shown that the plaintiffs were unable to convey any part of the Dikes grant by metes and bounds; they being at best but tenants in common in the land.

Third. They have never tendered such a deed as their bond to Blythe called for.

They did not ask in this proceeding the rescission of the Blythe contract, nor could they ask it in a court of equity, they being to all intents and purposes the defaulting parties.

The looseness and irregularity of this whole proceeding is again manifested by the verdict and judgment giving the plaintiffs upward of seven hundred acres more land than they have shown any title to.

The judgment of the District Court must be reversed, and the cause remanded, to be proceeded in in accordance with this opinion.

¡Reversed and remanded.