Thompson v. Duson

The opinion of the Court was delivered by Watkins, J. Under a writ of fieri facias, issued under a judgment in the suit entitled John Chaffe & Sons vs. C. P. Thompson, three714 fifths undivided interest in the Joel Tucker plantation was seized and advertised for sale in satisfaction thereof, and plaintiff, representing the heirs of Mrs. M. W. Kilpatrick, enjoins the sale of one third of said three-fifths thereof on the ground of ownership by their title of inheritance. The sheriff and seizing creditors join in one answer. They plead the general issue and no cause of action, and aver that the plaintiffs and their deceased mother were well aware of the fact that, for a great while before the seizure complained of, C. M. Thompson and his wife not only claimed said property as owners, but had recorded titles to the rights of Mrs. Kilpatrick, and that Mary E. Glaze, the wife, at, and antecedent to the said seizure, was in the possession thereof as owner, under a elation en paiement from her husband, and which had been theretofore duly recorded, and against this assertion of title same is urged as an estoppel. They further aver that Mary E. Glaze has also enjoined this seizure and sale on the ground of her ownership of the whole of the three-fifths interest, including that of Mrs. Kilpatrick, grounded on that elation, and on that account, aver that neither of their demands are serious or bona fide, and are only intended to obstruct their legal proceedings. They pray for the dissolution of the plaintiff’s injunction, with statutory damages of ten and twenty per cent on the amount of the judgment sought to be executed, and special damages of $250. On the trial the judge a quo sustained and perpetuated plaintiff’s injunction and'quashed the seizure of that part of the property claimed without damages, and the defendants have appealed. Our decision must turn upon the construction of the following instrument of writing, viz: “ Nava sota, Grimes County, Tex., Jan. 30, 1880. “ Received of Chas. J. Thompson, of the parish of St. Landry, State of Louisiana, the sum of five hundred dollars, said amount being the first payment of a part of the purchase-price of a piece of land situated in the parish and State aforesaid, on the left descending bank of Bayou Boeuf. The titles to said lands not yet being made, I hereby obligate myself, my heirs and assigns to make a title to said land, to the said Thompson, when he shall call for the same. “ The terms and conditions of the sale being the same as those in the sale of Mrs. L. B. Waller unto the said Thompson, foi a portion of the same tract of land. ‘‘ (Signed) Mary W. Kilpatrick. “ I authorize my wife to sign the foregoing instrument of writing. “ (Signed) A. R. Kilpatrick.” [715] The plaintiff’s petition avers that this “ instrument of writing ” was not intended by their mother to actually and really convey their interests in the property, but that same was only a promise of sale, which was never executed during their mother’s lifetime, or since. It is a noteworthy fact that there is no averment in the defendants’ answer to the effect that it was a sale to Thompson, but, in lieu thereof, the allegations quoted were made of acquiescence and estoppel. In Broodwell vs. Raines, 30 Ann. 677, this Court had under consideration quite a similar instrument. Its concluding paragraph is as follows, viz r “ Titles to said property to be made at our own convenience, as per our private agreement.” The Court says : “ Under this agreement, Lane (the promisee), took possession of, and cultivated the plantation for seven years, during which he paid nothing on the purchase-price, and at the end of which he was heavily involved in debt.” Then they proceed to discuss the question of Lane’s ownership under this document, and say: “ The mere reading of this instrument * * is conclusive on our minds that this was not a sale, but a mere conditional promise to sell. “ The first part of the agreement seems to convey the idea of a sale, but the reference to the titles, which are to be made at a future time, shows clearly that the contract was not translative of property, and did not operate a mutation of title.” Citing Knox vs. Payne & Harrison, 13 Ann. 361, and Garret vs. Crooks, 15 Ann. 483. The two instruments are so perfectly alike in respect to the reference to the execution of titles, that we deem it unnecessary to cite further authority. In the one under present consideration, tile condition is,that the promissor agrees “ to make a title * * to the said Thompson when he shall call for the same,” while in that just referredto, the titles were to be made at the mutual convenience of the parties. The language employed in the promise of sale to Lane, viz: “I have this day bargained, sold and delivered” are wanting in that to Thompson -, and, if the former was correctly held not to be translative of property, the latter’s certainly cannot be. We regard the opinion In the case cited a,s perfectly correct, and hold that the instrument under consideration to be only a promise on the part of Mrs. Kilpatrick to sell to Thompson, which didnot operate a mutation of title, and which [716] only entitled] Mm, upon full compliance with the conditions therein stipulated, to compel her to make title. The fact, that'.Thompson entered into a joint possession of the property with others, and used the .revenues, and afterwards made a conveyance to his wife, does not exercise any influence over the title, or alter its status. The proof does not satisfy us that plaintiff had been advised of the'conveyance to Mary E. Glaze. They resided then, and reside now, in the State of Texas, and, while there are some circumstances pointing to their knowledge of it, they are altogether too inconsequential for a court of justice to act upon. The judgment of the court a qua does substantial justice between the parties. The demand of plaintiff for damages was properly rejected. Judgment affirmed.