House v. Kendall

Moore, Chief Justice. By consent of parties and on their motion, this case, at the last term of the court, was referred to the commissioners of appeals, and subsequently it was heard by the commissioners and an award agreed upon and prepared. But before its announcement, by consent of parties the order of reference by which the case had been referred, was, on their joint application, set aside, and by consent the case was returned by the commissioners to this court without an announcement of their award. It was subsequently submitted to this court for decision on briefs of both parties. [43] And an inspection of the record, and a careful consideration of the award agreed upon by the commissioners, satisfying us that the law and justice of the case have been fully reached and considered in said award, and that the determination of the case as therein awarded is in exact conformity with the judgment which should be rendered therein by this court, we deem it appropriate to adopt the report of said commissioners as the opinion of the court. And it is therefore ordered that the judgment in said case be reversed, and the cause remanded to the district court for further proceedings in accordance with the views expressed in said award. Reversed and remanded. [Opinion delivered March 18, 1881.] Walker, Commissioner. The gist of the plaintiff’s action is to enforce the specific performance of an obligation to convey title to land, and in default thereof to recover back the purchase price or consideration paid by plaintiff’s assignor in performance of his part of the contract. The contract being an undertaking by a co-executor, under a will conferring authoi’ity upon the defendant and another to settle the testator’s estate without the action of the district court (made when the district court had exclusive probate jurisdiction), and which in terms, as is seen in the will offered and excluded as evidence, requested them to act jointly in the settlement of the same, was one which could not be specifically enforced; it was on its face the undertaking of but one of the executors, and did not affect or bind the estate. A deed from the defendant, in pursuance of the contract, would have been inoperative. Hart v. Rust, 46 Tex., 556. The trust is a personal one, to be executed by both, and neither a court of law nor a court of equity would enforce the invalid contract made by one of them. If the defendant, under a contract made by himself, in [44] valid in law, and which he did not cause to be executed, or offer to procure to be executed by the joint action of his associate executor, received from the obligee of the bond to convey the land a part of the purchase price of said land, such default would be as conclusive against him, in respect to his liability, as it would be in the instance of a total failure of title on the part of an obligor to do so, but who had no title to convey. Where there is a total failure of title on the part of the vendor, the vendee may, if the contract be executory and unfulfilled, refuse to perform it, and reclaim any portion of the purchase money which he may have advanced. Story on Sales, 176; 1 Sugd. on Vend., 241; Judson v. Wass, 11 Johns:, 528. The amounts received by the defendant on account of the contract were in evidence; the plaintiff was entitled to a judgment for the amount showm to be due, with eight per cent, interest thereon. The court may have, and doubtless did (judging from the recitals in the judgment), proceed in the rendition of judgment for the defendant upon the theory of his non-liability, individually, upon the contract, because he executed it in the qualified character of “co-executor.” It is nevertheless to be observed, that the liability is not claimed by plaintiff by reason of a promise therein contained to refund the money; but because the contract does not obligate him, and supplies no consideration whatever for the payment by Winfrey of the purchase money, there arises the moral and legal duty to refund it. The facts are sufficiently stated as to the whole transaction, and are supported by clear proof to warrant upon the pleadings a judgment for plaintiff upon this view of the case. It is not perceived that the exclusion of the will as evidence operated, or could have done so, to affect injuriously the plaintiff; the instrument sued on showed the essential fact that he was co-executor, and as the plaintiff did not rely upon showing that the associate executor was a party to the obligation to convey the land, perhaps the [45] will, if in evidence, would not have affected the question. The sworn answer of the defendant denying that the obligation sued on bound him individually, was in effect but a special traverse of the counter proposition of fact and law set up by plaintiff in the petition; and no rule of pleading required a replication to- it in order to admit whatever evidence such an issue involved. It appears from a bill of exceptions that it was upon an opposite view to this proposition that the court excluded the will. If the contents of the will are essential to establish, or tend to do so, any issuable fact, it should have been admitted in evidence. The judgment recites that a jury was waived, cause submitted to the court, which, after hearing the “pleadings and sworn plea of the defendant, and testimony in support thereof, and plaintiff having no evidence to introduce but the papers on file, and the will of 0. H. Kendall, which was ruled out by the court, it is therefore considered by the court,” etc. The papers on file referred to embraced receipts, orders, etc., evidencing the defendant’s indebtedness; also the contract described in the petition, with the assignment to plaintiff duly acknowledged. The statement of facts showed the introduction as evidence of said papers; no counter-proof offered tending to impair its effect. The record shows clearly that it was under an erroneous view of the law held by the court as to the effect of the evidence, and not in respect to its authenticity or weight, that induced the conclusion arrived at in rendering the judgment. The nature of the plaintiff’s action entitled him to the jurisdiction of the district court; he had a right to offer to comply on his part and to accept, if tendered, a proper deed from both executors. In such case the amount of money claimed as an alternate relief would not affect the jurisdictional question. For the reasons given in this opinion, we determine that the judgment should be reversed and the cause remanded to the district court for further proceedings.