Rock v. Heald, Massie & Co.

Moore, J. The answer of the defendants in the District Court, who are the appellants in this court, manifestly presented no valid defence to the payment of. the note sued upon, or for staying the proceedings 'in this case for the purpose of making other parties. It is not pretended or averred that there is any defect in the title to the land, in consideration of which the note here in suit was given. The only matter of complaint is, that a formal deed had not been executed to the purchasers by the administrator. The distinctions between executed and executory contracts for the sale of land, are well defined and clearly established [525] by the former decisions of this court. (Cooper v. Singleton, 19 Tex., 260; Hurt v. McReynolds, 20 Tex., 595 ; Hurt v. Blackburn, 20 Tex., 601.) But the facts in the present case do not call for their application. The confirmation of the sale by the County Court vested the title of the land substantially in the purchasers, subject to the payment of the purchase money secured by the note and mortgage, upon which this suit is founded. The execution of a deed by the administrator is at most but the formal evidence of the title vested in the purchasers by the decree of the court. Their failure to demand it from the administrator before giving him their note and mortgage upon the same land, (if we could reasonably conclude that such was the case,) presents no valid defence against the plaintiffs’ action. It is not pretended that they were informed of the fact that .the purchasers had not received a deed from the administrator for the land for which the note was given before its execution. Although the plaintiffs acquired the note after it became due, as the law regulating administration sales directs a title to be made to the purchaser, and a mortgage by him on the premises to secure the payment of the purchase money, they were justified in the belief that a deed or satisfactory evidence of their title had been given to the purchasers, or to conclude from the fact of their not requiring it, as the law entitled them before giving their note, that they did not rely upon the failure to receive it, as a ground for the postponement of payment óf the note. The judgment is affirmed with damages. Judgment affirmed.