Sharp v. Baker , 22 Tex. 306 ( 1858 )

Roberts, J.

It will be necessary to notice only a few of the leading features of this case. Sharp brought a suit on a note under seal. Baker pleaded a failure of consideration, to wit, that it was given in part payment of one hundred and seventy acres of land, sold by Sharp to him; that Sharp had bound himself, in a title bond, to make him a “good and sufficient deed” to the land; that Sharp derived his right through a defective tax title; that the title to the land, was outstanding in another person, different from the person under whom Sharp claimed; that his right depended upon a deed from a married woman, who had conveyed without the consent of her husband, and without a private acknowledgment of her deed; and that Sharp' had not made, and could not make, a good title to said land. Defendant prayed for a rescission of the contract of sale; a recovery back of the purchase money that had been paid, about eight hundred dollars; also for the value of his improvements, about two hundred dollars ; and offered to restore possession of the premises. He also alleged his willingness and readiness, to pay the whole of the purchase money, if Sharp will make him a good title to the land.

The plaintiff amended his petition, by denying the allegations of the defendant, as to the defects of his title, and by replying that Sharp, at the time of the sale, purchased with full notice of the character of his title, and took the risk of it; and that he was not hound to make a deed; until the purchase money was wholly paid; and further, that Baker had failed and refused to carry out the contract of sale; that he had enjoyed the rents and profits of the land, which were worth several hundred dollars, &c.; asked a rescission of the contract; that Baker should be decreed to forfeit the purchase money already paid; that he recover the rents, and be restored to the possession of the land.

It will be observed, that each party asks that the contract of sale shall be carried out and enforced, if it can be done upon his own terms; and that each party asks that the contract shall be rescinded, upon certain terms and conditions, prescribed by himself. The rescission, with its dependent consequences, as prescribed by each, is sought by each, as an alternative remedy, only upon the condition that the contract cannot be enforced, in a manner conformable to his own view of the facts, and to his own construction of the contract.

The charge of the court does not so treat the issues, but takes for granted, as the starting point in the controversy, that the contract must be rescinded, if the title is not in Sharp, but is outstanding in another; and seeks to settle the rights of the parties, only on that basis. There' is no part of the charge, which contemplates the enforcement of the contract, upon any other terms. It must, therefore, be erroneous, if there be found in the record any evidence, reasonably tending to prove the plaintiff’s right to have it enforced upon other terms. The difficulties in Sharp’s title, arising out of Mrs. McCabe’s deed to Jour don, and Jourdon’s death before making a deed' to Sharp, might have been obviated by Sharp;' and he was not bound to remove those difficulties, by the terms of his bond, until the purchase money was paid. The only modification of this rule, which Baker had a right to insist upon, was that, upon paying the money into court, or upon alleging a readiness to pay it, upon the title being made clear, the court should suspend the plaintiff’s remedy in the collection of the money, or otherwise protect the defendant, so that he should get a good title, when the .plaintiff should be allowed to receive the said purchase money.

The most insurmountable difficulty in Sharp’s title, arose out of the fact, that it was a tax title, the land having been sold for taxes, as the property of Mills. The evidence was by no means conclusive, that Mills had transferred the land before the date of the tax sale. The testimony on this subject, shows that the transfer was witnessed; still, neither the names of the witnesses, nor that of the grantee, are disclosed. The witnesses are not called to prove the transfer. The witness merely saw the deed, purporting to be a transfer, in the adjutant general’s office. The admission of such evidence, without objection, does not add any weight to it, if intrinsically it had none, and should have been excluded, upon objection. Evidence does not have weight, because it is admitted; but it is admitted, because it deserves to have weight.

As the jury, then, may have found that the land belonged to Mills, at the time it was sold for taxes as his property, it becomes important to ascertain whether there is anything in the case, which will relieve Sharp from any defects, that may have been shown to exist in said tax title.

The testimony of Brown certainly tends to prove, that the sale was a fair one; and that Baker purchased the land, with a full knowledge that Sharp’s right depended upon a tax title; and that he took the risk of such title. It may not prove this fully; but it reasonably tends in that direction, with too much force, to be entirely disregarded, and taken from the consideration of the jury, by the court. Had there been special issues submitted, (which would have been the proper course in so complicated a case,) and the jury had found that the sale was fair, and that Baker had full notice of the tax title, or that he took upon himself the risk of the tax title, and only stipulated for a deed, or regular chain of title under it, the court might have enforced the contract, and at the same time, so guarded the rights of the defendant, as to have required this chain to be perfected, before plaintiff should be allowed to collect the purchase money. Had all the facts been found upon special issues submitted, the court might, if necessary, in a case so peculiarly of equity cognizance, have suspended its final decree, until the rights of the parties could be adjusted and fully secured, in the enforcement of their contract.

Had the defendant, after the maturity of both of the notes, and after the last one was ingrafted upon the suit, alleged a readiness to pay the balance of the purchase money, upon plaintiff manifesting his capacity to make a regular chain of transfer under the tax title, then the court, in the exercise of its equitable powers, would have been moved into activity on behalf of the defendant, so as to relieve him from the necessity of a cross action, separately brought, after paying the money, to obtain such chain of transfer, or recover damages under the forfeiture in the bond.

But this is not what he alleged. He alleged his readiness to pay the balance of the purchase money, if plaintiff would manifest his ability and readiness to make him a good and valid title to the land. The court, in the charge to the jury, has put its powers in motion, in his behalf, by taking it for granted that the plaintiff was bound to make such good title, before he could collect the purchase money, notwithstanding there is evidence in the case, tending to show that plaintiff was not so bound; but, on the contrary, that Baker understood himself as purchasing only a tax title.

Whether Baker bought with such notice, and with such risk, or not, seems to be the leading matter in the controversy, both in the pleading and in the evidence. It was error, in the court, to fail entirely to charge upon it; especially, as attention was called to it by the charges asked by the plaintiff. Those charges, thus asked, may not be exactly correct, nor is it necessary that they should be, to put the court upon'its guard, in reference to a clear omission in the original charge.

The different parts of the charge, subsidiary to this main proposition, need not be discussed. Judgment is reversed and the cause remanded.

Reversed and remanded.