Hendricks v. Snediker

Moore, C. J. The demurrer in this case seems to have been sustained on the supposition that the judgment of this court in the case of Boze v. Davis, 14 Tex., 331, precludes appellant from a recovery of the land for which he sues. If the judgment in that case can be maintained, as a correct application of the rules of equity to the facts which were before the court, there can be no doubt that appellant cannot enforce his demand for the land which he claims, if his right to it rested solely upon the ability of the defendant in execution to have enforced a specific performance of the voluntary agreement of his father to make him a conveyance. The decision in this case is placed by the court upon the general principle, uniformly sustained by all the courts from the earliest to the latest cases, that a mere voluntary defective conveyance, which cannot operate at law, is not helped in equity in favor of a volunteer, when there is no consideration nor any accident or fraud on which to ask relief. Undeniably, under the general rule on this [305] subject, to entitle a party to the aid of a court of equity, his claim for its interposition in his behalf must be supported by a valuable consideration, or, at least, by what a court of equity considers a meritorious consideration. But whether this well-established rule of equity was applicable to the facts before the court in the case of Boze v. Davis may, we think, admit of considerable doubt. The only cases referred to by the court in support of the judgment, to which we have been able to refer, in which the facts were in any degree similar to those before the court, is the case of Kirksey v. Kirksey, 8 Ala., 13, but this was an action in a court of law for the money expended on the faith of the voluntary promise, and Rucker v. Abell, 8 B. Monr., 566, which was a controversy between the volunteer and creditors of the owner. But the applicability of this general rule to a state of facts precisely such as are before this court in the case on which we are commenting is emphatically denied by the Supreme Court of the United States. “ Whatever uncertainty may exist as to the terms of the contract, there can be no question that the complainant acted under it in taking possession of the property and expending a large sum of money in its improvement. In no point of view could such a contract be considered voluntary. There was not only a good consideration, that of natural affection, but a valuable one. To constitute a valuable consideration, it is not necessary that money should be paid, but if, as in this case, it be expended on the property on the faith of the contract, it constitutes a valuable consideration.” King v. Thompson, 9 Pet., 204. And it seems, but for the uncertainty. of the contract, the court would have decreed a specific performance. The principles enunciated in this case are subsequently referred to and approved in the case of Shepherd v. Beven, 9 Gill, 32, by the supreme court of Maryland. ■ Without feeling called on at this time to decide, if it was necessary for us to determine the point, whether we would [306] adhere to the decision in the case of Boze v. Davis, or. follow that of the Supreme Court of the United States to which we have referred, we will say, that it seems difficult to us, on correct legal principle, to call a party a volunteer who, on the faith of a parol agreement, has gone into possession and expended his means in improvements, or tell why the court should withhold from him all relief, and yet interpose for the protection of a parol purchaser, although the actual expenditure hy the latter may be far less than that of the former. It is a familiar doctrine, that there need be no pecuniary benefit passing to the vendor to make a consideration valuable. Anything injurious or detrimental to the other party is equally operative in making the contract binding. But if, in the case before us, it should be held, that P. W. Brewer, the defendant in execution, was entitled to have claimed performance of the parol promise of his father, to make him a title to the lot, we feel by no means satisfied that it would benefit the appellant. Would the equitable rights of the party making improvements under such circumstances he subject to levy and sale under execution? The rights of such a party are more or less indefinite and uncertain until they have been fixed by the decree of the court. They seem much more in the nature of an uncertain and undetermined claim or demand against the holder of the title to the land, hy enforcing which he may acquire an interest in the land, than a title or interest directly in it. If uncertain interests' of this sort are the subject of sale under execution, evidently they must be made at ruinous sacrifices to debtors, and without effecting the purpose of the law in satisfying the claims of creditors. The position of such party is not like that of one holding under a contract, with specific and definite conditions and stipulations. The right to a decree in each case of this kind must depend on its own peculiar circumstances. An equitable interest in land may, no doubt, be the subject of exe [307] cation sale, but this is not the case in respect to every equitable interest. As was said by Mr. Justice Lipscomb, “ It may be that an equitable claim to title or a resulting tru,|t may sometimes be subject to sale by execution. If, for instance, a purchaser had paid for the land and-taken a bond for title, the land would be subject to execution against the purchaser, because there would be nothing uncertain, nothing to be done on the part of the purchaser, nor on the part of the vendor, but to make title.” (Dougherty v. Cox, 13 Tex., 209.) This question, however, has not been discussed, and, as it may not be important in the further progress of the case, it is sufficient to call the attention of the parties to it, without at present finally disposing of it. Whatever may be thought as to the foregoing questions, on the first of which the case was evidently decided in the district court, the judgment must be reversed. It is averred in the petition, and admitted by the demurrer, that the defendant in the execution "went into possession of the lot in January, 1847, and from that time until the purchase by appellant at sheriff’s sale, in March, 1857, he occupied, improved, and held said lot in exclusive possession as his own property, with the full knowledge and consent of his father. Evidently, then, he had acquired, by this possession of it, “ full property, precursive of all other claims,” by virtue of the 17th section of the statute of limitation, although his possession was without any evidence of title whatever. But even if this were not the case, as it was shown that the defendant in execution was one of the heirs of the legal owner of the lot, he certainly had a partial interest in it. This may have passed to the appellant by the sheriff’s sale. If so, he could, on the trial, have shown its extent, and had a recovery for it. That relief was also claimed on other and erroneous grounds was no reason why a general demurrer should have been sustained to the entire petition. [308] The demurrer to the last amendment of the petition was properly sustained. If appellant acquired not a right to the land by his purchase at the sheriff’s sale, he certainly acquired no interest in any claim which the defendant i.Dg£xecution may have had against the owners of the lot for the improvements which he had made on it. This was a mere equitable claim against the owner, in the nature of an action or demand. It certainly cannot be supposed to be the subject of levy and sale. Nor is there any reason to hold that by a purchase of land under an illegal sale he should have acquired a right to compensation for the improvements, if such right could be sold under execution. The improvements, or right to demand compensation for them from the owner of the land, was not what the sheriff purported to sell. To have sold such right under cover of an illegal sale of the land was calculated to have misled the defendant, and to have prevented persons attending the sale from buying. But most evidently such an interest or claim is not subject to levy and sale under execution. The judgment is reversed, and the cause Remanded.