McKelvain v. Allen , 58 Tex. 383 ( 1883 )

Stayton, Associate Justice.

This is a suit of trespass to try title brought by appellant against the appellee and D. D. and A. M. Powell, to recover a part of a grant of land originally made to John Welsh.

It appears that the appellant, on the 15th of January, 1880, conveyed the land in controversy to the Powells by a deed in the usual form, with a covenant of general warranty of title.

This deed showed upon its face that the land was sold upon a credit for $1,522.50, and that the Powells had executed two obligations in writing to secure the purchase money.

Each of the obligations for the purchase money, which were executed simultaneously with the deed, stipulated that “a vendor’s lien is hereby given on said land (of which a general description had been before given in each of the obligations) for the payment of this note; and in case of a failure or refusal on our part to pay this note at maturity, then we hereby agree to pay $4.50 per acre rent for all the land we are buying that is in cultivation.”

The Powells failed to pay the first obligation falling due, and in accordance with their agreement paid the rent. The Powells went into possession of the land, and so continued until they were dispossessed by the United States marshal under a writ which directed him to place the appellee Allen in possession of the land; after which the Powells attorned to her.

These facts appeared in the petition, and there was a prayer for title and possession of the land; a tender into court of the obligations for the purchase money executed to appellant by the Powells, with a prayer that the conveyance to them be canceled, or, if that could not be done, that he have judgment for the purchase money and a foreclosure of the lien given by the Powells.

The Powells admitted the making of the agreements between them and the appellant, disclaimed any interest in the land, and expressed a willingness to pay rent therefor to whomsoever was the owner of the land. Mrs. Allen alleged that the Powells were her tenants, and pleaded not guilty, and also filed a general denial.

On the trial Mrs. Allen offered in evidence a judgment against the two Powells and other defendants, rendered in the circuit court of the United States at Tyler by default on the-of May, 1880, in a suit instituted in that court by her on the 25th of March, 1880, against the appellant, the two Powells and other defendants, ■which, however, as to the appellant, was dismissed prior to judgment.

There was no service upon the appellant in that suit, and it does not appear that he had notice that such suit was instituted until judgment therein had been rendered.

This judgment, as the bill of exceptions shows, was offered as evidence of title in Mrs. Allen to the land in controversy, and to show that appellant was concluded thereby.

To its introduction for this purpose appellant objected, because he was not a party to the suit in which the judgment was rendered, and had no notice of the suit. The objection was overruled, the judgment admitted in evidence, and this is assigned as error.

The deed from HcKelvain was absolute upon its face, and it ■would have passed the title to the "land in controversy to the Powells, notwithstanding the recital therein of the fact that the purchase money was unpaid; a vendee’s lien, however, would have existed to secure the purchase money, of which the recitals in the deed would have given notice; but the agreement contained in the notes which were executed simultaneously with the deed, that a lien should exist upon the land to secure the payment of the purchase money, must be held equally as effective to prevent title passing to the Powells as though the lien had been reserved in the face of the deed; for all the instruments executed at the same time, and in regard to the same matter, must be held in legal effect as but one instrument.

Under the repeated decisions of this court, the instruments, taken together, evidence but an executory contract by HcKelvain to sell the land in controversy to the Powells. Dunlap’s Adm’r v. Wright, 11 Tex., 597; Baker v. Ramey, 27 Tex., 59; Peters v. Clements, 46 Tex., 114; Baker v. Clepper, 26 Tex., 629; Roosevelt v. Davis, 49 Tex., 463; Baker v. Compton, 52 Tex., 261.

The contract seems even to contemplate a rescission of the executory contract if there was default in the payment of the purchase money.

Under such facts, the relation of the Powells to the land was in subordination to the right of HcKelvain; rather that of tenants, with a contract by which they might become the owners, than the owners. The possession of the Powells was the possession of HcKelvain, ant] as against him, without payment of the purchase money, they could get no title. Of this the appellee seems to have been conscious; for she made HcKelvain a party defendant in the federal court, reciting in her petition the conveyance from him to the Powells. She, however, afterwards dismissed her suit as to HcKelvain. Under these facts, the appellee can claim no greater right under her judgment against the Powells than they had; and in this action, when neither the Powells nor the appellee proposed to perform the contract which the Powells had made with McKelvain, the judgment which she obtained against the Powells in a suit to which McKelvain was not a party should not have been introduced in evidence to show title in her. Read v. Allen, 56 Tex., 177; Read v. Allen (decided, at present term). •

[Opinion delivered January 23, 1883.]

The same reasons apply for the exclusion of such evidence as would apply had there been no other relation between McKelvain and the Powells than that of landlord and tenants. Their executory contract to buy the land cannot affect the question.

For the error of the court in admitting in evidence the judgment obtained by Mrs. Allen against the Powells, the judgment must be reversed.

The evidence shows that the appellant has title to fifty acres of the land in controversy by limitation, and that he has title to at least one-half of the remainder in the same manner, under the sixteenth section of the statute of limitations; but the state of the record is such that we cannot with certainty tell whether the title of appellant to the residue of the land had been so perfected before the institution of the suit by the appellee against the Powells or not.

The deed from White to Harrington and appellant does not seem to have been recorded until the 15th of September, 1880; but the deed from Harrington to appellant for one-half of the land was recorded September 4, 1873.

If this last conveyance passed the title to the particular land now in controversy, except the fifty acres conveyed by B. A. Bead directly to appellant, then the title to all of the land in controversy would be complete in appellant by limitation; but if such is not the effect of the deed from Harrington (which is not set out in full in the record), then the appellant does not show a recorded deed to himself for one-half of the land conveyed to Harrington and himself by White, until September 15, 1880.

Such being the state of the record, the judgment will not be reversed and rendered, but will be reversed and remanded, that the parties may adjust their rights in accordance with the facts.

Reversed and remanded.