John Tumlinson's Adm'r v. John York's Adm'r

Hemphill, Ch. J. This was a suit for specific performance of a bond for title to land. It was commenced in the County Court, where the prayer for performance was refused. On appeal to the District Court, this judgment was reversed, and the cause has been brought by appeal to this Court. We are of opinion that there was error in the judgment of the District Court. The bond does not recite any consideration. There is no allegation in the petition, that a valuable consideration was paid by the vendee, and although there is no statement of facts, and we cannot ascertain from the record what facts were in proof, yet there being no allegation of the essential fact of valuable consideration, we cannot presume that, in violation of the rules of evidence, such fact was established by proof. The averments and proof must correspond; and this being the rule, we must presume there was no evidence of valuable consideration. It is a well established rule, that specific performance of an agreement to convey land, will not be enforced, unless founded on a valuable consideration. Where the receipt of such consideration is expressed in the agreement, or bond, its existence would be prima facie presumed; but where not so expressed, or admitted by the vendor in the pleadings, it must be established by proof; and being a material fact, it must be averred, that the proof may be admitted. (Boze v. Davis, 14 Tex. R. 331; Short v. Price, 17 Id. 397.) In the latter case, reference was had to Art. 710, of the Digest, and it was held inapplicable to cases where the plaintiff must show a valuable consideration as prerequisite [698] to the decree, and where, on principles of equity jurisprudence, the seal imparts no efficacy to the instrument on which the suit is brought; that the only effect of the article would, in such cases, be, that where a valuable consideration is expressed in the instrument, it could not be impeached by the defendant, unless under oath; whereas on general principles of equity, this would not be required. The first error in this case was the overruling, by the County Court, of the demurrer to the petition. This should have been sustained by that Court, and its judgment on the demurrer should have been reversed by the District Court. The question as to the statute of limitations need not be considered, as on a new trial there may, on proper pleading, be proof of valuable consideration; and if so the point of limitation, under the facts, would not arise. We are of opinion that there was error in the judgment of the Court below, and that the same be reversed and the cause .remanded for a new trial. Reversed and remanded.