Johnson v. Bowden

Walker, J. The opinion heretofore announced, dismissing this case, has been held up, on our attention being called to an agreement of counsel, waiving the substantial grounds of the motion to dismiss. We think it due to ourselves, however, to notice that though by the agreement the failure of the appellant to assign errors was waived, and he was permitted to make his assignment of errors here, yet no errors have been assigned. The record is not indexed, and we have been compelled to grope our way through the record to find what should have been brought directly and specifically to our notice. This self-imposed labor has not been without its results. Drucilla McMeans died, leaving a will which authorized the executors, John G. Gooch and E. H. Harrell, whom she had appointed to execute her will, to sell at public or private sale the property in controversy. Harrell died without having qualified or acted as executor ; but Gooch, virtute officii, sold the property to John H. Morrison, at private sale, in 1866, for one hundred and fifty dollars, Morrison paying one hun [624] dred and thirty-eight dollars of the purchase-money in hand. 'A deed was written out and signed by Gooch; but, requiring attestation, the delivery and record were delayed until. after Gooch’s death. Morrison went into possession of the property, and claims to have made improvements; and he also claims to have paid the remainder of the purchase-money to Gooch’s administrator, who, he avers, paid the same to the appellee. He also pleads a tender in court to the appellee, Mrs. Bowden, who is the administratrix de bonis non, with the will annexed, of Mrs. McMeans. There can be no doubt but that the court erred in sustaining the exceptions to the plaintiff’s petition. The failure of Harrell to qualify as executor could not defeat the execution of the power by Gooch. This was a naked power devised, and there were other duties and trusts involved in the execution of the will. (Franklin v. Osgood, 14 Johnson, 553; Zebach v. Smith, 3 Binney, 69; Jackson v. Burtis, 14 Johnson, 398; Sugden on Powers, p. 105; Story’s Eq. Juris., Section 1062.) Morrison having sold the property to Wrenn and wife, and they to Johnson, he becomes a proper party to this suit and may prosecute it in his own name. The doctrine of this court is, that where property is sold by parol sale, the purchase-money paid, and the vendee takes possession of the property and makes improvements, the case is not within the statute of frauds, and a decree will be rendered for specific performance. Dugan’s heirs v. Colville’s heirs, 8 Texas, 126; Ottenhouse v. Burleson, 11 Texas, 87. These cases have been followed in the subsequent adjudications of this court. The judgment of the District Court is reversed and the cause remanded. Reversed and remanded.