VATION OF RIGHT BY VENDEE TO PERFECT TI-
TLE DID NOT REQUIRE PAYMENT OF TAXES
AGREED TO BE PAID BY VENDOR.

A reservation in a contract of sale of land

to avoid its payment in money at maturity |5. Vendor and PURCHASER ~144(1)—RESERwas for defendant Platt to clear the title to the land before maturity which has not been done. The instrument is not ambiguous, so cannot be varied by parol evidence. Smith v. Montgomery, 3 Tex. 199; Rockmore v. Davenport, 14 Tex. 602, 65 Am. Dec. 132; Barnard v. Robertson, 29 S. W. 697; Bank v. Fuller, 191 S. W. 830; Leavell v. Seale, 45 S. W. 171; Riley v. Treanor, 25 S. W. 1054.

[3] But the court heard evidence, and it clearly appears therefrom that it was the understanding of the parties that the note was collectable, if title was not cleared by the time fixed by the writing. So, if properly construed, the writing being a contract of guaranty, it had matured under the facts. Parker v. McKelvain, 17 Tex. 158; Johnson v. Bailey, 79 Tex. 516, 15 S. W. 499.

For the reasons indicated, the cause is reversed, and here rendered for appellant.

ECHOLS v. MILLER et al. (No. 1559.) (Court of Civil Appeals of Texas. Amarillo. Jan. 14, 1920.)

1. VENDOR AND PURCHASER 303-RECOVERY ON BREACH OF CONTRACT CONDITIONED ON

OFFER TO PERFORM.

In order for vendor to recover on a breach of a contract to purchase land, he must show that he performed, or offered to perform, the obligations imposed by the contract upon him, provided such obligations were not independent, or some other valid reason for the failure of the plaintiff to perform, or offer to perform.

2. CONTRACTS 173-STIPULATIONS PRESUM

ED DEPENDENT.

The presumption is that all stipulations in a contract are dependent.

3. CONTRACTS 173-OBLIGATION ΤΟ BE SUBSEQUENTLY PERFORMED INDEPENDENT.

of the right to the vendee to perfect the title at the vendor's expense conferred a privilege, and did not impose a duty on the vendee, and the vendee had the right to refuse a tender of the deed, where taxes for the year were not paid by the vendor, as agreed.

Appeal from District Court, Floyd County; R. C. Joiner, Judge.

Action by R. E. Echols against Robert Miller and another. From an adverse judgment, plaintiff appeals. Affirmed.

A. P. McKinnon and Kenneth Bain, both of Floydada, for appellant.

B. B. Greenwood, of Breckenridge, for appellees.

BOYCE, J. On October 8, 1917, appellant, R. E. Echols, entered into a contract with the appellee Robert Miller, by the terms of which the said Echols agreed to sell to the said Miller certain land in Hale county. The contract provided that the vendee should pay for said land the sum of $8,000; that of this amount $500 was deposited with the First State Bank of Floydada, as earnest money, to bind the trade and to constitute part of the cash payment upon delivery of deed; that a further payment of $1,500 was to be made at the time of the delivery of the deed and that the balance of the consideration should be paid by the assumption of certain notes outstanding against the land, and the execution and delivery by the said Miller of certain other notes provided for in the contract. These provisions of the contract are followed by this clause:

"It is further expressly agreed that the first party [Echols] shall, within fifteen days from this date furnish complete abstract, showing good merchantable title to said land, and execute or cause to be executed, good title to second party [Miller]; and second party shall, within ten days after such abstract is furnished, pay the balance of said cash payment and execute said notes, and if he shall fail or refuse so to do, then said earnest money is forfeited 134(1)-OFFER to first party as liquidated damages, but if said

An obligation of a contract may be held to be independent if a time is fixed in the contract for its performance which is subsequent to the time fixed for the performance of the contract by the other party.

4. VENDOR AND PURCHASER

TO DELIVER DEED NOT OFFER OF PERFORM-
ANCE WHERE TAXES UNPAID.

title should not be good and merchantable, then said earnest money is to be returned to second party by said First State Bank. Second party, however, reserves the right to perfect the title at first party's expense. All taxes due up to and including the year 1917 to be paid by R. E. Echols."

Under a contract for the sale of land, where the vendor agreed to pay the taxes for the year 1917, vendor did not offer performance by tendering deed without offering to pay the amount of the taxes for 1917, where the taxes were due at the time of the execution of the contract and tender of deed, but would not become delinThe abstract for title was furnished within quent until thereafter; the mere fact that the due time. This showed that the taxes for taxes would not become delinquent and penalty 1917 were not paid, but otherwise exhibited added until after January 1, 1918, under Rev. St. 1911, arts. 7615, 7624, not being sufficient a good and merchantable title in favor of Ecto rebut presumption that provision for pay-hols. The attorneys employed by the vendee ment of taxes was a dependent obligation. to examine the title, in their report thereon,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(218 S.W.)

the vendee, rather than that the vendee should accept the incumbered title with no security for the performance of the vendor's promise to pay the taxes, and thus remove the incumbrance other than the mere promise on the part of the vendor to pay such taxes. The promise is therefore not independent, and it was necessary for the plaintiff, before he could put the defendant in default, to show that he had performed, or was ready to perform, this obligation.

called attention to the fact that the said ab- |ent obligation. We think the contract constract showed that such taxes were not paid, templated that the lien created by reason of and to another matter, either of which they as- the unpaid taxes due on this land should be serted rendered the title unmerchantable. removed at or prior to the time of the conWe need not go into the details of the other summation of the contract by delivery of objection, since the court below properly held, the deed on the part of the vendor and paywe think, that such objection was untenable.ment of the balance of the consideration by The appellant thereafter, without payment of said taxes for 1917, tendered to the appellee a warranty deed for the land, which the appellee refused to accept. The appellant then filed this suit against the said Miller and the First State Bank, to recover the said $500 on deposit with the said bank, claiming that he was entitled to said sum under the provisions of the said contract above quoted. The First State Bank answered that it held said funds in readiness to pay the same to either of the parties as might be entitled thereto under the judgment of the court. The defendant Miller answered that the plaintiff was not entitled to recover because the plaintiff had not tendered such title as he had agreed to do, but the same was defective in the two particulars pointed out in the opinion of his attorneys already referred to. The trial was had before the court without a jury, and the court, after finding the facts substantially as we have stated them, concluded as a matter of law that the plaintiff was not entitled to recover, and the appellant is appealing from this judgment.

[1-4] It was necessary for the appellant,

[5] The appellant also insists that, under the provisions of the contract which reserved the right to the appellee to perfect the title at appellant's expense, the appellee could have paid such taxes and withheld the amount out of the cash payment, and, having such right, he "ought not to be allowed to refuse to consummate the deal on the ground that the taxes were not paid." This provision of the contract conferred a privilege, and did not, in our opinion, impose a duty on the appellee, and the appellant cannot complain that the appellee did not exercise a privilege where the contract imposed the duty upon the appellant.

in order to recover on a breach of the contract by appellee, to show that he had performed, or offered to perform, the obliga- of law, and the judgment will be affirmed.

Under the findings of fact, we think the trial court announced the correct conclusion

DUPUY et al. v. DICKS et al. (No. 7770.)

(Court of Civil Appeals of Texas. Galveston.
Dec. 4, 1919. Rehearing Denied
Jan. 8, 1920.)

FIVE-YEAR STATUTE VESTS TITLE.

tions imposed by this contract upon him, provided, of course, that these obligations were not independent, or some other valid reason for the failure of the plaintiff to perform, or offer to perform, them stated. Bowles v. Umberson, 101 S. W. 842; R. C. L. vol. 6, p. 948. The presumption is that all stipulations in a contract are dependent. R. C. L. vol. 6, pp. 860, 861; C. J. vol. 13, pp. 567–571; Clark on Contracts, p. 450. An obligation may be held to be independent if a time 1. ADVERSE POSSESSION 27-RUNNING OF is fixed in the contract for its performance, which is subsequent to the time fixed for the performance of the contract by the other party. No specific time is fixed by the terms of this contract for the payment of the taxes for 1917. Said taxes were, however, due at the time of the execution of the contract and tender of deed, though they would not have become delinquent until January 31, 1918. R. S. arts. 7615, 7624. They constituted a lien on the land, and to that extent a valid objection to the title. Wright v. Bott, 163 S. Where a duly recorded deed conveying land W. 360, § 13. We do not think that the mere was signed by husband and wife, though it did fact that the taxes would not become denot appear that the wife was examined privily linquent and penalty added until after Jan-is sufficient color of title to support a claim of and apart from her husband, such conveyance uary 31st is sufficient, under the circumstances, to rebut the presumption that the provision for payment of taxes is a depend

Evidence of the possession of plaintiff's predecessors, which continued under color of title for five years prior to the suspension of the statute on January 28, 1861, having been accompanied by payment of taxes on the land, held to show adverse possession.

2. ADVERSE POSSESSION 71(2)-HUSBAND
AND WIFE 194-DEED SUFFICIENT AS COL-
OR OF TITLE THOUGH WIFE FAILED TO AC-
KNOWLEDGE IT.

title by limitations under the five-year statute,
though the property being the separate prop-
erty of the wife, the conveyance was void.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
218 S.W.-4

3. ADVERSE POSSESSION 82-NECESSITY OF | a consideration of $4,605. The deed conveyRECORDING A DEED TO CLAIM UNDER FIVE- ing the land was sufficient in all respects,

YEAR STATUTE.

Where one claiming under color of title conveyed the land, but the deed to the grantee, who was placed in possession, was not recorded for nearly a year, the failure to record the deed broke the chain of possession, and the grantor's previous possession could not be counted in making up the five-year period, though the land was shortly thereafter reconveyed to him.

4. ADVERSE POSSESSION 82-FIVE YEARS' POSSESSION BROKEN BY FAILURE TO RECORD DEED NOT CONTINUED BECAUSE GRANTOR

RESERVED LIEN.

Where the grantee of one who entered on land under color of title and held possession for some time failed to record his deed for about a year, the continuity of possession was broken and the running of the statute stopped, even though the grantor had a vendor's lien on the land for the purchase price, and it was subsequently reconveyed to him.

Appeal from District Court, Anderson County; John S. Prince, Judge.

Trespass to try title by Mrs. Georgia K. Dicks and another against J. A. Dupuy, individually, and as executor of the will of A. G. Dupuy. From a judgment for plaintiffs, defendant appeals. Affirmed.

A. G. Greenwood, of Palestine, for appel

lant.

Campbell & Sewell, of Palestine, for appellees.

PLEASANTS, C. J. This is an action of trespass to try title brought by Mrs. Georgia Kirksey Dicks against appellant, J. A. Dupuy, in his individual capacity, and as executor of the will of A. G. Dupuy, deceased. The land involved in the suit is a tract of 160 acres, a part of the Francis Bettic league, in Anderson county, and known and designated as lot No. 7 in the partition of the lands on said league belonging to the estate of Isaac Kirksey, deceased, as shown in the decree partitioning said lands recorded in volume J, p. 195, of the Probate Minutes of the county court of Anderson county. In addition to the usual allegations in a suit of trespass to try title the petition alleges title in plaintiff Mrs. Dicks under the three, five, and ten year statutes of limitation.

The defendant answered by plea of not guilty and also pleaded the statute of limitations of five years.

The trial in the court below without a jury resulted in a judgment in favor of plaintiff for the land in controversy.

It was agreed upon the trial that on March 3, 1851, the title to the land in controversy was acquired by Ann P. Allbright. On April 4, 1851, William Allbright and his said wife, Ann, conveyed the land to Isaac Kirksey for

except that the acknowledgement of Mrs. Allbright was defective in failing to recite that she was examined privily and apart from her husband. The acknowledgment of William Allbright was in proper form. This deed was recorded in the deed records of Anderson county on the day of its date.

The evidence sustains the following additional conclusions of fact:

"That after the execution and delivery of above deed Wm. Allbright lived until December 28, 1878, on which date he died five miles west of Crockett, in Houston county, Tex., and that Ann P. Allbright died in Houston county on September 13, 1888.

"That Isaac Kirksey went into actual possession of said land after the execution of said deed and cultivated it through overseers and his sons, which occupancy and possession was continuous with the payment of taxes for about 20 years, and that this occupancy and possession was adverse to every one.

"That while he was in possession thereof, in the fall of 1856, Dr. J. I. Kirksey, for his father, Isaac Kirksey, paid to Mrs. Ann P. Allbright, the grantee in said deed $1,000 on the purchase money for said land; same being the last payment for said land. At that time Mrs. Allbright lived at Alabama crossing, on Trinity river, in Houston county, and that Houston county adjoins for many miles the southern boundary of Anderson county.

"That neither Wm. Allbright, Ann P. Allbright, or any of their heirs have ever asserted title or claim to said land since the date of said deed, April 4, 1851.

chain of title regular in all respects from and "That plaintiff has a perfect and complete under Isaac Kirksey and paid taxes on the land from 1885 to 1890, inclusive, and all taxes are shown to have been paid thereon prior to 1885, but the tax records are destroyed and it cannot be ascertained therefrom who paid the taxes prior to 1885.

"That on August 30, 1910, one M. E. McKinzie executed and delivered to J. A. Wolverton an instrument by which he bargained, sold, quitclaimed, and released unto J. A. Wolverton all his right, title, interest, and estate in the land sued for, with a habendum clause as follows: "To have and to hold the abovedescribed premises unto the said J. A. Wolverton, his heirs and assigns forever.'

"Said instrument was not filed for record until December 16, 1910.

"That J. A. Wolverton went into possession of the land, and he, Wolverton, so testified, under the instrument from McKinzie, for the sole purpose of acquiring title by limitation. That both McKinzie and Wolverton were trespassers and had no title or claim of title or interest whatsoever in and to the land and were strangers to plaintiff's title.

"That on February 12, 1913, J. A. Wolverton in every respect to convey the title out of conveyed by general warranty deeds, sufficient Wolverton, to G. R. Hogg 120 acres, and to w. W. Webb the remaining 40 acres of the land sued for, and then ceased and surrendered

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(218 S.W.)

The evidence is sufficient to sustain the finding that Isaac Kirksey took possession of the land after his purchase from William and Ann Allbright, and he and those holding under him held exclusive adverse possession, cultivating, using, and enjoying the premises, It now appears that it was the separate and paying all taxes thereon, for more than property of the wife at the time the deed was ten years. made, and her acknowledgment being fatally Dr. J. E. Kirksey, son of Isaac Kirksey, defective the deed was void and passed no testified: title; but notwithstanding this fact, such