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to avoid its payment in money at maturity (5. VENDOR AND PURCHASER 144(1)-RESERwas for defendant Platt to clear the title VATION OF RIGHT BY VENDEE TO PERFECT TIto the land before maturity which has not

TLE DID NOT REQUIRE PAYMENT OF TAXES

AGREED TO BE PAID BY VENDOR. been done. The instrument is not ambiguous, so cannot be varied by parol evidence. Smith of the right to the vendee to perfect the title at

A reservation in a contract of sale of land V. Montgomery, 3 Tex. 199; Rockmore v.

the vendor's expense conferred a privilege, and Davenport, 14 Tex. 602, 65 Am. Dec. 132; | did not impose a duty on the vendee, and the Barnard v. Robertson, 29 S. W. 697; Bank vendee had the right to refuse a tender of the v. Fuller, 191 S. W. 830; Leavell v. Seale, deed, where taxes for the year were not paid by 45 S. W. 171; Riley V. Treanor, 25 S. W. the vendor, as agreed. 1054.

[3] But the court heard evidence, and it Appeal from District Court, Floyd County ; clearly appears therefrom that it was the R. C. Joiner, Judge. understanding of the parties that the note

. Action by R. E. Echols against Robert was collectable, if title was not cleared by Miller and another. From an adverse judgthe time fixed by the writing. So, if properly ment, plaintiff appeals. Affirmed. construed, the writing being a contract of

A. P. McKinnon and Kenneth Bain, both of guaranty, it had matured under the facts. Parker v. McKelvain, 17 Tex. 158; Johnson Floydada, for appellant. v. Bailey, 79 Tex. 516, 15 S. W. 499.

B. B. Greenwood, of Breckenridge, for ap

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

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 ECHOLS V. MILLER et al. (No. 1559.)

contract provided that the vendee should (Court of Civil Appeals of Texas. Amarillo. pay for said land the sum of $8,000; that of Jan. 14, 1920.)

this amount $500 was deposited with the 1. VENDOR AND PURCHASER 303–RECOVERY First State Bank of Floydada, as earnest

ON BREACH OF CONTRACT CONDITIONED ON money, to bind the trade and to constitute OFFER TO PERFORM,

part of the cash payment upon delivery of In order for vendor to recover on a breach deed; that a further payment of $1,500 was of a contract to purchase land, he must show to be made at the time of the delivery of the that he performed, or offered to perform, the deed and that the balance of the consideraobligations imposed by the contract upon him, tion should be paid by the assumption of cerprovided such obligations were not independent, tain notes outstanding against the land, and or some other valid reason for the failure of the the execution and delivery by the said Miller plaintiff to perform, or offer to perform.

of certain other notes provided for in the con2. CONTRACTS 173–STIPULATIONS PRESUM- tract. These provisions of the contract are ED DEPENDENT.

followed by this clause: The presumption is that all stipulations in

"It is further expressly agreed that the first a contract are dependent.

party [Echols) shall, within fifteen days from 3. CONTRACTS 173 - OBLIGATION BE this date furnish complete abstract, showing SUBSEQUENTLY PERFORMED INDEPENDENT. good merchantable title to said land, and ex

An obligation of a contract may be held to ecute or cause to be executed, good title to be independent if a time is fixed in the contract second party [Miller); and second party shall, for its performance which is subsequent to the within ten days after such abstract is furnished, time fixed for the performance of the contract pay the balance of said cash payment and exby the other party.

ecute said notes, and if he shall fail or refuse

so to do, then said earnest money is forfeited 4. VENDOR AND PURCHASER (134(1)-OFFER to first party as liquidated damages, but if said

TO DELIVER DEED NOT OFFER OF PERFORM title should not be good and merchantable, then ANCE WHERE TAXES UNPAID.

said earnest money is to be returned to second Under a contract for the sale of land, where party by said First State Bank. Second party, the vendor agreed to pay the taxes for the year however, reserves the right to perfect the title 1917, vendor did not offer performance by ten- at first party's expense. All taxes due up to dering deed without offering to pay the amount and including the year 1917 to be paid by R. E. of the taxes for 1917, where the taxes were Echols." due at the time of the execution of the contract and tender of deed, but would not become delin

The 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 Rey. 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

TO

(218 S.W.) 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 aywe think, that such objection was untenable. ment of the balance of the consideration by The appellant thereafter, without payment of the vendee, rather than that the vendee should said taxes for 1917, tendered to the appellee accept the incumbered title with no security a warranty deed for the land, which the ap- for the performance of the vendor's promise pellee refused to accept. The appellant then to pay the taxes, and thus remove the incumfiled this suit against the said Miller and brance other than the mere promise on the the First State Bank, to recover the said $500 part of the vendor to pay such taxes. The on deposit with the said bank, claiming that promise is therefore not independent, and it he was entitled to said sum under the provi- was necessary for the plaintiff, before he could sions of the said contract above quoted. The put the defendant in default, to show that he First State Bank answered that it held said had performed, or was ready to perform, this funds in readiness to pay the same to either obligation. of the parties as might be entitled thereto [5] The appellant also insists that, under under the judgment of the court. The de the provisions of the contract which reserved fendant Miller answered that the plaintiff the right to the appellee to perfect the title was not entitled to recover because the plain- at appellant's expense, the appellee could tiff had not tendered such title as he had have paid such taxes and withheld the agreed to do, but the same was defective in amount out of the cash payment, and, havthe two particulars pointed out in the opin- ing such right, he "ought not to be allowed ion of his attorneys already referred to. The to refuse to consummate the deal on the trial was had before the court without a jury, ground that the taxes were not paid." This and the court, after finding the facts substan- provision of the contract conferred a privitially as we have stated them, concluded as lege, and did not, in our opinion, impose a a matter of law that the plaintiff was not duty on the appellee, and the appellant canentitled to recover, and the appellant is ap- not complain that the appellee did not exerpealing from this judgment.

cise a privilege where the contract imposed (1-4) It was necessary for the appellant, the duty upon the appellant. in order to recover on a breach of the con

Under the findings of fact, we think the tract by appellee, to show that he had per

trial court announced the correct conclusion forined, or offered to perform, the obliga- of law, and the judgment will be affirmed. 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.

DUPUY et al. v. DICKS et al. (No. 7770.) Bowles v. Umberson, 101 S. W. 842; R. C. L. vol. 6, p. 948. The presumption is that all (Court of Civil Appeals of Texas. Galveston. stipulations in a contract are dependent. R. Dec. 4, 1919. Rehearing Denied C. L. vol. 6, pp. 860, 861; C. J. vol. 13, pp.

Jan. 8, 1920.) 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, FIVE-YEAR STATUTE VESTS TITLE. which is subsequent to the time fixed for the Evidence of the possession of plaintiff's performance of the contract by the other par- predecessors, which continued under color of ty. No specific time is fixed by the terms of title for five years prior to the suspension of this contract for the payment of the taxes for the statute on January 28, 1861, having been 1917. Said taxes were, however, due at the accompanied by payment of taxes on the land, time of the execution of the contract and

held to show adverse possession. tender of deed, though they would not have 2. ADVERSE POSSESSION Cm71(2)--HUSBAND become delinquent until January 31, 1918. AND WIFE -194--DEED SUFFICIENT AS COLR. S. arts. 7615, 7624. They constituted a OR OF TITLE THOUGH WIFE FAILED TO AClien 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, 8 13. We do not think that the mere

was signed by husband and wife, though it did fact that the taxes would not become de- not 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 circum- title by limitations under the five-year statute, stances, to rebut the presumption that the though the property being the separate propprovision for payment of taxes is a dependerty of the wife, the conveyance was void.

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

KNOWLEDGE IT,

DEED

3. ADVERSE POSSESSION 82-NECESSITY OF a consideration of $4,605. The deed convey

RECORDING A DEED TO CLAIM UNDER FIVE-ing the land was sufficient in all respects, YEAR STATUTE.

except that the acknowledgement of Mrs. Where one claiming under color of title Allbright was defective in failing to recite conveyed the land, but the deed to the grantee, that she was examined privily and apart who was placed in possession, was not recorded for nearly a year, the failure to record the from her husband. The acknowledgment of deed broke the chain of possession, and the William Allbright was in proper form. This grantor's previous possession could not be deed was recorded in the deed records of counted in making up the five-year period, Anderson county on the day of its date. though the land was shortly thereafter recon The evidence sustains the following addiveyed to him.

tional conclusions of fact: 4. ADVERSE POSSESSION 82-FIVE YEARS'

“That after the execution and delivery of POSSESSION BROKEN BY FAILURE TO RECORD above deed Wm. Allbright lived until December

NOT CONTINUED BECAUSE GRANTOR 28, 1878, on which date he died five miles west RESERVED LIEN.

of Crockett, in Houston county, Tex., and that Where the grantee of one who entered on Ann P. Allbright died in Houston county on land under color of title and held possession September 13, 1888. for some time failed to record his deed for "That Isaac Kirksey went into actual posses. about a year, the continuity of possession was sion of said land after the execution of said broken and the running of the statute stopped, deed and cultivated it through overseers and even though the grantor had a vendor's lien his sons, which occupancy and possession was on the land for the purchase price, and it was continuous with the payment of taxes for about subsequently reconveyed to him.

20 years, and that this occupancy and posses.

sion was adverse to every one. Appeal from District Court, Anderson

"That while he was in possession thereof, County; John S. Prince, Judge.

in the fall of 1856, Dr. J. I. Kirksey, for his

father, Isaac Kirksey, paid to Mrs. Ann P. Trespass to try title by Mrs. Georgia K. Allbright, the grantee in said deed $1,000 on Dicks and another against J. A. Dupuy, in the purchase money for said land; same being dividually, and as executor of the will of the last payment for said land. At that time A. G. Dupuy. From a judgment for plain- Mrs. Allbright lived at Alabama crossing, on tiffs, defendant appeals. Affirmed.

Trinity river, in Houston county, and that

Houston county adjoins for many miles the A. G. Greenwood, of Palestine, for appel- southern boundary of Anderson county. lant.

“That neither Wm. Allbright, Ann P. AllCampbell & Sewell, of Palestine, for ap- bright, or any of their heirs have ever asserted pellees.

title or claim to said land since the date of

said deed, April 4, 1851. PLEASANTS, C. J. This is an action of chain of title regular in all respects from and

“That plaintiff has a perfect and complete trespass to try title brought by Mrs. Georgia under Isaac Kirksey and paid taxes on the land Kirksey Dicks against appellant, J. A. Dupuy, from 1885 to 1890, inclusive, and all taxes in his individual capacity, and as executor of are shown to have been paid thereon prior to the will of A. G. Dupuy, deceased. The land 1885, but the tax records are destroyed and it involved in the suit is a tract of 160 acres, cannot be ascertained therefrom who paid the a part of the Francis Bettic league, in An- taxes prior to 1885. derson county, and known and designated as

"That on August 30, 1910, one M. E. Mclot No. 7 in the partition of the lands on said Kinzie executed and delivered to J. A. Wol. league belonging to the estate of Isaac Kirk. sold, quitclaimed, and released unto J. A. Wol.

verton an instrument by which he bargained, sey, deceased, as shown in the decree parti- verton all his right, title, interest, and estate tioning said lands recorded in volume J, p. in the land sued for, with a habendum clause 195, of the Probate Minutes of the county as follows: "To have and to hold the abovecourt of Anderson county. In addition to described premises unto the said J. A. Wolver. the usual allegations in a suit of trespass to ton, his heirs and assigns forever.' try title the petition alleges title in plaintiff

“Said instrument was not filed for record Mrs. Dicks under the three, five, and ten year

until December 16, 1910.

"That J. A. Wolverton went into possession statutes of limitation.

of the land, and he, Wolverton, so testified, The defendant answered by plea of not under the instrument from McKinzie, for the guilty and also pleaded the statute of limita- sole purpose of acquiring title by limitation. tions of five years.

That both McKinzie and Wolverton were tresThe trial in the court below without a passers and had no title or claim of title or jury resulted in a judgment in favor of plain-interest whatsoever in and to the land and were tiff for the land in controversy.

strangers to plaintiff's title. It was agreed upon the trial that on March

"That on February 12, 1913, J. A. Wolverton 3 1851, the title to the land in controversy in every respect to convey the title out of

conveyed by general warranty deeds, sufficient was acquired by Ann P. Allbright. On April Wolverton, to G. R. Hogg 120 acres, and to 4, 1851, William Allbright and his said wife, W. W. Webb the remaining 40 acres of the Ann, conveyed the land to Isaac Kirksey for 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.) his occupancy, possession, and claim of owner. "My father put negroes on part of the land ship to the lands, and testified he was not purchased by him from Wm. Allbright and claiming same after his deed to Hogg and Webb, wife, Ann P. Albright, on the Francis Bettic and Hogg and Webb took possession, claiming league, in Anderson county, Tex., and my the land under the deeds from Wolverton and brother, Granville Kirksey, took possession of not otherwise.

it and put an overseer over them and cultivat. "Neither of the deeds from Wolverton to ed same until October, 1855, when he died. I Hogg and Webb were filed for record until then took charge of it and controlled it until December 24, 1913.

I went into the Confederate army in June, “That the character of the possession of 1862; then my brother, Dr. W. S. A. Kirksey, Hogg and Webb was such that if the same had took charge of it and kept it until 1867, when continued for the period of five years from the my brother-in-law, Dan Rather, took charge date of the recording of their deeds it would of it. This occupancy was continuous with the have met the requirements of the five-year payment of taxes, for more than ten years." statute of limitation.

"That on August 30, 1913, Hogg and Webb, by separate general warranty deeds, for a re

This testimony is uncontradicted, and cited consideration in said deeds, respectively, while it is not definite in the statement of of $150 cash, and the cancellation of a $900 the time the possession began, nor as to the note of each of them given to Wolverton for character of cultivation and use of the land the purchase money for the lands, conveyed after 1855, the statement does show with the land to said Wolverton.

certainty that the cultivation of the land by "Deeds from Hogg and Webb to Wolverton Isaac Kirksey began prior to 1855, and the dated August 30, 1913, were not filed for record reasonable inference from the witness' statenor recorded in the deed records of Anderson county, where the land is located, until Decem- ment that after his father's death in 1855 ber 24, 1913.

he took charge and controlled the property “That from the date of the deeds from Hogg until he went into the Confederate army in and Webb to Wolverton, above, the character 1862 is that he continued the use and cultiof Wolverton's possession, claim of title, etc., vation of the land which had been begun was such, until November 8, 1913, that if con. prior to his father's death, and that the subtinued, with payment of taxes, for a period of five years prior to the filing of this suit from sequent possession and occupancy of the the date of the recording of his deed, it would property by his brother and brother-in-law have been sufficient to meet the requirements

was of the same character. of the five-year statute of limitation.

This possession and occupancy of the land “That on November 8, 1913, J. A. Wolverton, by the Kirkseys having covered a period of by general warranty deed, but which was not five consecutive years prior to the suspension recorded until December 24, 1913, conveyed the of the statute on January 28, 1861, and havland sued for to J. A. Dupuy and M. E. Dupuy, ing been accompanied by the payment of taxexecutors of the will of A. G. Dupuy, deceased.

es on the land and under a deed duly record“That on November 8, 1913, defendant took ed, the title became vested in the Kirksey possession of the land, and the character of

estate. his possession, occupancy, and claim of title was such, up to the date of the filing of this

[2] We think the recorded deed from Wm. suit, November 15, 1916, that if continued for and Ann Allbright was such a duly recorded a period of five years from the date of the deed to the land as would support a plea of recording of said deed, which was not recorded limitation of five years. It was in all reuntil December 24, 1913, and prior to the filing spects a sufficient deed and acknowledgment of this suit, it would have been sufficient to as to Wm. Allbright, and as such was entimeet the requirements of the five-year statute tled to registration. It does recite, for the of limitation."

purpose of identifying the land conveyed, We shall dispose of the questions raised that it was a portion of the land partitioned by appellants in inverse order to that in and apportioned by the county court of Houswhich they are presented in the brief, and ton county to the said Ann Allbright, late will not set out the several assignments of widow of Thomas R. Townsend, and deeded error, nor discuss them in detail.

to her by Wm. Allbright, administrator of [1] We agree with the trial judge that the the estate of said Townsend, by deed of date facts above stated entitled plaintiffs to a March 3, 1851, in pursuance of an order of judgment on their claim of title by limita- said court made in October, 1850. It is not tion.

a necessary inference from this recital that The evidence is sufficient to sustain the the land was the separate property of Ann finding that Isaac Kirksey took possession Allbright at the time this deed was made, or of the land after his purchase from William that it was her homestead, and if it had and Ann Allbright, and he and those holding been neither the deed of Wm. Allbright would under him held exclusive adverse possession, have passed the title. 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

deed must be held sufficient to support the It is well settled law that title cannot be plea of limitation,

acquired under the five-year statute of limiIn discussing this question our Supreme tation by adverse possession unaccompanied Court in the case of Roseborough v. Cook, by a recorded deed to the person in posses108 Tex. 364, 194 S. W. 131, say:

sion and claiming the land. The failure of “It is thus clear that a deed under the law Hogg and Webb to record their deeds from governing five years' limitation has a character Wolverton within a reasonable time after distinct from that of an effectual muniment of their execution destroyed the previous adtitle. For the purpose of such limitation it verse possession of Wolverton, and the failperforms an office unrelated to title and al ure of Wolverton to record his deeds of rethough as a conveyance of title it may be futile. conveyance to him from Hogg and Webb That office is simply to aid the possession as within a reasonable time destroyed the prea means of notice of the adverse claim to the vious adverse possession of his said grantors. land. The law of limitation of actions for land Porter V. Chronister, 58 Tex. 55; Cook v. is founded upon notice. The title by limitation

Dennis, 61 Tex. 248; Gillum v. ripens, primarily, only because, in such manner

Fuqua, 61 s. and for such period of time as the different W. 938; Dunn v. Taylor, 147 S. W. 311; statutes require, notice is given of the hostile Wm. Cameron & Co. v. Collier, 153 S. W. claim. Under the three-year statute, it is af- 1178. forded by possession under title or color of [4] Appellants' contention that the possestitle. Under the ten-year statute, simply by sion of Hogg and Webb was the possession of possession. And under the five-year statute Wolverton because by reversing a vendor's it is given by possession, the payment of taxes, lien in his deed to them the superior title and the registration of a naked deed. It is remained in Wolverton, and that Hogg and not the character of the deed as a conveyance Webb were holding under and for him, and, of title which, under the five-year statute, helps to put limitation in motion. It assists his deed being duly recorded, he was entitled the operation of limitation under that statute under the five-year statute to the benefit of merely because of the notice given of the ad- their possession, cannot be sustained. The verse claim by its registration as an instrument superior title, remaining in Wolverton by which purports to convey, not the title, but the reason of his retention of the vendor's lien, land.”

was superior only for the purpose and to the

extent of protecting him in the payment of It is not essential for the support of the the purchase money, and could be asserted plea of limitation that the deed under which for no other purpose, and only in event of the land is claimed and held should in fact the failure of his vendees to pay the purconvey title; all that is required is an in-chase money. After he conveyed the land strument in the form of a deed purporting to them he could not be regarded as its ownto convey the land, and not void upon its er so long as the unpaid purchase money face. Wofford v. McKinna, 23 Tex. 36, 76 was undue, nor until he had exercised his Am. Dec. 53; Schleicher v. Gatlin, 85 Tex. right to cancel the contract of sale. He did 270, 20 S. W. 120.

not claim to own the land during the time We think the deed in question meets this it was held by Hogg and Webb. He testified: requirement. Davis v. Howe, 213 S. W. 609. [3] The trial court did not err in finding February 12, 1913, they went into possession

"After I sold the land to Hogg and Webb on against appellant on her plea of limitation under deeds 'from me and held such possession of five years. The availability of the statute for themselves and claimed the land as their which began to run in favor of Wolverton own and were not holding it for me up to when he recorded his deed from McKinzie and August 30, 1913, when they conveyed it back to took possession of the land was interrupted me. by Hogg and Webb allowing their deeds from "I was not claiming the title to the land Wolverton to them to remain unrecorded while Hogg and Webb were in possession of it, from February 12, 1913, to December 24, from the time I made the deeds to them on 1913, and was again interrupted by the fail- February 12, 1913, up to August 30, 1913, when

they conveyed the land back to me." ure of Wolverton to record the deeds from Hogg and Webb reconveying the land to him If we are correct in the conclusions above for about four months after their execution. stated upon the issues of limitation raised by Wolverton's adverse possession did not be the record, the other questions presented begin until August 30, 1910; this suit was filed come immaterial and need not be discussed. in 1916, and in order to get five years' ad We have considered each of appellants' asverse possession in defendants and those un signments of error, and in our opinion none der whom they claim Wolverton and Hogg of them should be sustained. It follows that and Webb must have, during the entire time the judgment of the trial court should be of their occupancy, been claiming under a affirmed ; and it has been so ordered. recorded deed.

Affirmed.

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