Urquhart v. Ury , 27 Tex. 7 ( 1863 )

Moore, J.

This case was submitted to the court below for decision, .with reference to the law and facts, on the allegations set forth in the pleadings and exhibits, which were mutually admitted by the parties to be true. On these the court gave judgment for the plaintiff; and we see no reason to doubt that it did so correctly. There was no definite period of time fixed by the contract between Have and Durham, when they should mutually comply with the stipulations of their respective bonds. This was to be done as soon as Have should obtain a patent for the 640 acres of land which he bound himself to convey to Durham. The patent was not issued until a short time before the commencement of the present suit. And although there was great delay in obtaining it, we cannot say, in view of the explanation given for it in the pleadings, that the contract should have been regarded by the court as abandoned, or the cause of action upon which the plaintiff relied, treated as a stale demand.

Have, by his contract with Durham, acquired whatever title the latter had to the lots in controversy, subject only to the condition that he should comply with the bond which he had given for title to the land which he exchanged for them. Durham’s bond operated as an equitable conveyance of whatever title he then had, or might afterwards acquire, to the lots. Have, if he complied with the contract on his part, was entitled to claim a deed from Durham or his heirs, or any one holding or claiming under him, with notice of Have’s equitable title; or, if Durham only held an equitable title, it passed to and vested in Have, and he could assert it against the party holding the legal title. It cannot be questioned that the agreement of compromise between Urquhart and Durham must be regarded as a mutual admission by the former, that Durham had the right to sell the lots which he had disposed of. At least he acquired by it a relinquishment from Durham of his claim upon all the land in dispute between them, and agreed, in consideration thereof, to hold the legal title for the benefit of those persons who had purchased from Durham; and he is surely es-topped from afterwards denying that Durham had a right to sell the lots. The contract between Urquhart and Durham was supported by a valuable consideration, and the latter, it is clear, could have maintained a suit against the former to have compelled him to have executed titles to the purchasers of the lots as he had agreed to do. It is equally clear that the purchasers from Durham could proceed in equity directly against Urquhart for their titles. It is said, though, that Have was not a party to the agreement between Urquhart and Durham, and that he cannot, therefore, complain if they subsequently annul or cancel it. It may be true that, if Urquhart had conveyed the lots purchased by Nave back to Durham, or placed Durham in the same position with reference to them, that he was before, that Nave could not complain. But this they did not intend or attempt to do. Their supplemental agreement was not intended to revoke their original compromise in any particular, but to carry it into effect, with reference to the Nave lots, upon the hypothesis that his right to them had been forfeited or lost by his failure or delay in complying with his part of the contract between himself and Durham. This, however, was not the fact. There had not been such a delay by Nave at the time Urquhart and Durham agreed to divide the lots between them, as authorized the conclusion that Nave had either forfeited or abandoned his contract. The judgment is affirmed.

Judgment affirmed.