Short v. Price

Hemphill, C. J. Michael Short, the appellant, in the year 1842, executed his bond to convey to John Short one third of Ms headright league and labor of land so soon as the same should be located. John Short departed this life in 1847. In 1855 the bond was sold by an administrator de bonis non of the estate of John Short at public sale, and the appellee, Larkin F. Price, having become the purchaser, brought this suit for specific performance, and also for partition of the land patented to Michael Short for Ms headright, and that the portion due the appellee might be assigned to Mm in severalty. There was a decree for performance, and partition according to the prayer of the plaintiff's petition, and the defendant, Michael Short, appealed, and assigns sis error : [402] 1. Overruling the demurrer to the petition, and the plea of limitations. 2. Refusing a new trial on the ground stated in the motion, viz: a want of consideration. Prom the statement of facts, it appears that the facts alleged in the petition were proven, with the exception of payment of consideration by John Short to Michael Short. There was no proof of any consideration for the bond, outside of the bond itself, which was appended to the petition. The bond recited no consideration. It stated merely that Michael had bargained and sold to John Shortthe one third of his headright claim to a league and labor of land to be conveyed as soon as located, the location to be at the expense of the vendor. No condition or act was required of the vendee by the bond ; but it does not appear from the bond that he had paid any consideration. The appellant has confined his argument to the second assignment viz : the alleged error in refusing a new trial, notwithstanding the want of proof that consideration had been paid by the vendee. We will consider no other point than the one discussed by the appellant. The question on the Statute of limitations will therefore be passed without comment. The appellant states it as the well settled doctrine, that a deed of bargain and sale which recites no consideration may be proven by parol to have a consideration, but that in default of such recital or proof, the deed creates only a resulting trust to the grantor, and cites 4 Kent Com. 465; Smith on Contracts, 69. See also 2 Story Eq. Jur. sec. 1197, 1199, 1200 ; 9 Foster's N. H. Rep. 129 ; and the appellant insists that if this were a deed, instead of an agreement, equity, without proof of the consideration, would consider the title as resulting to the grantor. Without comment on this proposition, as it is not involved in the case, we will proceed to examine whether equity will enforce an agreement where no valuable consideration is recited or proven to exist. This point admits, in fact, of no discussion or [403] difference of opinion, as it is believed to be a rule without exception, that Equity will not interfere to enforce an executory contract, unless it be founded on a valuable consideration. This question was examined with some care in the case of Boze v. Davis, 1 Tex. B. 331, and many authorities in support of the principle were cited. (1 Story, Eq. Sec. 483, note (1) ; 2 Story, Eq. Sec. 706,706 a, 787, 793 a,.973, 987; 6 Ves. 662 ; 18 Ves. 149 ; 1 John. Chan. 336, 337 ; 8 B. Monroe, 566.) Bui it may be said that this is a sealed instrument, and. that a seal of itself imports a consideration. This may be regard ed as established doctrine in Courts of Law, but in Equity, where the suit is not for damages, but for specific execution, no additional force is given the agreement, because it is evidenced by an instrument under seal. (Adams on Equity, p. 78.) A valuable consideration is requisite. Where this is recited, its existence would be prima facie presumed; but where it is not expressed in the agreement, or admitted by the pleadings, proof of its existence must be adduced by the plaintiff. The effect of Art. 710, Hart. Dig., or its bearing in this class of cases, has not been discussed. The Article probably has reference only to instruments in which a valuable consideration, general or special, has been expressed ; but, at all events, it is inapplicable in cases where the plaintiff must show a valuable consideration as prerequisite to the decree, and where, on principles of Equity jurisprudence, the seal imparts no efficacy to the instrument on which the suit is brought Its only effect, in such cases, would be, that where a valuable consideration is recited or expressed in the instrument, it could not be impeached by defendant, unless under oath, whereas on general principles of Equity, this does not seem to be required. The appellee has contended in a very ingenious argument, that the rule in relation to valuable consideration is applicable only to contracts strictly executory, where the vendor, for in [404] stance, has a right to revoke his grant; but that the contract in this case should be regarded as executed; that all the conditions cumbent on John Short, the vendee, had been performed ; and that Michael Short should be regarded as a- trustee holding for the benefit of the vendee and his assigns. This is believed to be the substance of the argument. The law in relation to the necessity of valuable consideration is well condensed by Adams on Equity from the authorities, and is shown to be confined, in equity as well as at Law, to promises which rest in fieri. If the promise has been executed, whether at Law by the transfer of legal ownership, or in Equity by the creation of a final trust, the consideration on which it is made is immaterial; that the exact line of demarcation, where the. contract ceases to be an executory agreement and becomes a perfected trust in Equity, is often difficult to distinguish. ' If the donor has perfected his gift in the way which he intended, so that there is nothing left for him to do, and nothing which he has authority to countermand, the donee’s right is enforceable as a trust, and the consideration is immaterial, <fcc., &c. But on the contrary, if the transaction is incomplete, and its final completion is asked in equity, the Court will not interpose to perfect the author’s liability, without first inquiring into the origin of the claim, and the nature of the consideration given. (Adams on Equity, 79, 80 ; Edwards v. Jones, 1 Mylne & Craig, 226; 4 M. & C. 647 ; 1 Hare, 464 ; 4 Haref 67.) Had Michael Short assigned his certificate, or a portion of the land surveyed under it, in such mode as would have enabled John Short to have taken out patent in his own name, the contract would have been so far executed as to have given the vendee a right in equity to the land, without proof of the consideration. The transaction would have, in fact, been complete. The contract would have been executed. There would have been no subsequent act required of the vendor. And had the latter, under this state of the facts, caused the patent to [405] issue to himself, he would in equity be deemed a trustee, and compelled to transfer the land to his vendee. This is the principle of the decision in the case of Read v. Long, 4 Yerger, 68. It appears from that case, that Long empowered Reed-to procure for his, Read's, own use, whatever lands Long might be entitled to for Revolutionary services. Subsequently Long procured the warrant to be issued in his own name, and Long having died, the grant was made to Ms heirs. Read having sued the heirs, it was decreed that the land should be vested in him. It was held that it was not necessary that Read should prove a 'consideration ; that there was an absolute transfer of all of Long's right to Read. Nothing remained for Long to perform. No subsequent act by Long was necessary to pei'fect the transfer ; that the agreement, therefore, was not executory, but executed, and that though the legal title had vested in Long's heirs, yet they held in trust for Read. But such is not the character of the transfer from Michael to John Short. The sale is of one third of his headright claim, and he covenants to make title as soon as the same should be located. Here the transfer was not complete. Subsequent acts must be done by Michael before complete title could vest in John Short. The object of this suit is to enforce the performance of those acts, and to perfect the transfer. The contract is therefore executory and comes within the rule requiring valuable consideration in all cases where the object of the jjuit is to enforce the specific execution of agreements. We are of opinion that there was error in refusing to grant a new trial, and it is ordered that the judgment be reversed, and the cause remanded for new trial. Reversed and remanded.