Evans v. Bentley

HEAD, Associate Justice. — On the 3rd day of August, 1874, B. C. Evans, in consideration of $500 cash and one note for $225, due six months after date, conveyed to J. J. Bentley, by warranty deed, in which the vendor’s lien for the deferred payment was expressly reserved, lots 15 and 16, in block 108, of the city of Fort Worth. J. J. Bentley, at the time of this conveyance, was, and ever since has been, a married woman, and the note for the deferred payment was signed by her husband, W. J. Bentley, alone. The $500 cash payment was the separate property of the wife. At the time of this purchase the Bentleys lived in the State of Louisiana, where they have ever since resided. W. J. Bentley paid the taxes upon this property for one year after its purchase, after which they both seem to have paid no further attention to it, until about the time of the institution of this suit. *114 The lots declined in value a short time after this sale to such an extent that in 1878 they were not worth more than was then due upon the $225 note. In 1878 B. C. Evans instituted suit upon this note and obtained a judgment foreclosing the vendor’s lien upon said lots, and at a sale thereunder became the purchaser thereof. In that suit W. J. Bentley alone was made defendant, and service was had by delivering to him a copy of the petition in the State of Louisiana. After his purchase under this judgment, Evans, claiming to be the owner of the lots, regularly paid the taxes thereon, and exercised the usual acts of ownership over them, but no one seems to have been in actual possession. In 1884, the lots having greatly increased in Value, were sold by Evans for $5500, which went into the community estate of himself and plaintiff in error, Ella Evans. This" suit was instituted, we infer, in January, 1891 (the date of the filing of the original petition not being given in the amendment upon which the case was tried), by the Bentleys, to recover the lots as the separate property of Mrs. B.; but failing in this, they prayed, in the alternative, for a judgment in her favor against Mrs. Evans, as survivor in community of herself and deceased husband, B. C. Evans, for the amount he had received at the sale in 1884. The court below rendered judgment in favor of the purchasers under Evans, upon the ground that they had no notice of the separate property interest of Mrs. Bentley, but gave her judgment against Mrs. Evans for such portion of the $5500 received at the 1884 sale as the $500 cash payment bore to the original contract price ($725), which, with the interest thereon, amounted to the sum of $5237.75; and in this we think there was error. It is clear that B. C. Evans did not waive or become divested of the superior legal title to the lots which he retained in the deed he made to Mrs. Bentley, by reason of his ineffectual attempt to foreclose the vendor’s lien, in a suit to which she was not made a party. Ufford v. Wells, 52 Texas, 612; Foster v. Powers, 64 Texas, 247; Land and Cattle Co. v. Boon, 73 Texas, 548; Pierce v. Moreman, 84 Texas, 596. It is also clear, that the vendee in an executory contract of this kind can waive or abandon his right to demand specific performance, even in cases where a part of the purchase price has been paid. Lanier v. Foust, 81 Texas, 186; Kennedy v. Embry, 72 Texas, 387; De Cordova v. Smith, 9 Texas, 129. That such relief should be refused in cases involving long delay, during which changes in the value of the property have occurred, is emphasized in strong language in De Cordova v. Smith and Kennedy v. Embry, supra. In the case last cited, the facts were quite similar to those in the case at bar, and the following language was used: “If the vendee has actually abandoned the contract, or has so acted as to create the reasonable belief on the part of the vendor that he has abandoned it, the vendor may rescind without notice of his intention, notwithstanding the part performance by the vendee.” In De Cordova v. *115 Smith, the property had greatly appreciated in value during the delay of the vendee, and under the circumstances of that case, it was held that specific performance should be refused him. Also see Fry on Spec. Perf., 3 ed., sec. 1070, et seq.; Pom. Con. (Spec. Perf.), sec. 407, 408. The author last cited uses this language: “Where a vendee delays in completing the contract, in order that he may speculate upon the chances of its proving to be an advantageous bargain, or that through a rise in value or other change of circumstances his gain may be assured, and then when he is thus certain that it will be a fortunate speculation, offers to perform and sues to compel a conveyance by the vendor, a court of equity will refuse to grant him the remedy, even though he may have at an earlier day paid part of the purchase price. And a rise in the value of the land during the interval will always be a fact of much weight in tending to show that the vendee’s delay was speculative, and for the very purpose of awaiting such a turn favorable to himself.” A large number of cases, both English and American, are cited in the note to sustain the text. That appellees would not be entitled to recover the money received by Evans at the resale, unless they could maintain a suit against him for specific performance, we think there can be no question. De Cordova v. Smith, supra. In this case, the acts of the Bentleys were such as not only to create a reasonable belief on the part of Evans that they had abandoned their contract, but were such as to leave but little doubt that this was in fact their intention during the period of depression in the value of the lots, and that this intention was never changed until after the property had greatly enhanced in value, and the vendor had made a resale thereof. It would be inequitable to allow the vendee in an executory contract of this kind to absent himself from the State for a series of years, so as to prevent the recovery of a personal judgment against him upon his contract, and also to allow him to neglect the payment of the taxes upon the land, thereby jeopardizing the security of the vendor, and then permit him, after a rescission by the latter, and after years of delay, to claim the benefit of the enhanced value of the property. We believe, however, that where the vendee has paid a considerable portion of the purchase price which has not been repaid in the use of the property, the vendor upon a rescission should account for the amount he had received with interest. Thomas v. Beaton, 25 Texas Supp., 318; Coddington v. Wells, 59 Texas, 49. Plaintiff in error in her answer offered to do this. We therefore conclude, that the proper judgment as to these parties to be rendered upon the findings and agreements is in favor of Mrs. J. J. Bentley for the $500 cash payment made by her, and in favor of W. J. Bentley for $813, interest on this amount from the date of such payment to this time, this judgment to be against Mrs. Ella Evans, as *116 representative of the community estate of herself and deceased husband. The judgment of the court below will therefore, as between plaintiff in error and the Bentleys, be reversed, and judgment as above indicated here rendered, but in all other respects will be affirmed. Affirmed in part. Reversed and rendered in part. Delivered December 5, 1894.