Doggett v. Patterson , 18 Tex. 158 ( 1856 )

Wheeler, J.

The only exception taken to the petition, which is deemed to require notice, is, that the contract sued on is a contract for the sale of lands ; and that it is not averred to be, and is not, in writing, and is therefore void under the Statute of Frauds. It does not appear, by the petition, that the contract is not in writing ; and if it were a contract for the sale of lands, it was not necessary to allege thafritwas in writing. (James v. Fulcrod, 5 Tex. R. 512.) That would be matter of proof. But it was not a contract for the sale of lands. The land had been sold by the plaintiff prior to the making of the contract; notes taken for the payment of the purchase money, which were not matured ; and a bond given by the plaintiff to make title to the purchaser, upon payment of the notes. The contract and undertaking on the part of the plaintiff was to substitute the defendant to his rights, as against his vendees. To effect this, instead of simply assigning the notes with the vendor’s lien, he was to procure his vendees to substitute for the notes to himself, new notes payable to the defendant ; and he was to niake to the defendant a deed transferring the legal title merely, which remained in himself. Thus the defendant was to be substituted to his rights and remedies against his vendees. They, having a bond for title, and having given their notes for the purchase money, not as yet due, held the equitable title to the land, which was superior to that of their vendor; and could not be divested by any act of his, unless upon the contingency of their making default in payment. His interest in the land was only the vendor’s lien, and a mere contingent interest, dependent upon the payment of the purchase money at maturity. This he contracted to transfer to the defendant. It was not a “ contract for the sale of lands and was not required to be in writing by the Statute of Frauds of this State ; which, as was observed in James v. Fulcrod, differs from the English statute. Our statute embraces “ contracts for the sale of lands” only. (Hart. Dig. Art. 1451,) Whereas the Statute of 29 Car. ii C. 3, is more comprehensive, embracing all contracts, not only for the sale of lands, but “ any interest in or concerning them.” (1 Sug. on Vend. 102; 5 Tex. R. 512.) The contract set out in the petition, therefore, was a valid contract, though not in writing.

The only question which could be made upon the legal sufficiency of the petition, is respecting the plaintiff’s averment of performance and tender of performance of his part of the contract. But the exceptions do not question its sufficiency in this respect; and it is, we think, substantially sufficient. It is not averred that the defendant had delivered up, and caused to be cancelled, the deed from Elgin to himself. But as he avers the tender of a deed from Elgin to the defendant, it is to be taken that this must have been done, or, at least that the defendant did not object to the title on that ground, as he has not assigned it in his exceptions to the petition.

Because the Court erred in sustaining exceptions to the petition, the judgment must be reversed and the cause remanded.

Eeversed and remanded.