Farrow v. Sims , 1957 Tex. App. LEXIS 2308 ( 1957 )

On Motion for Rehearing.

In his motion for rehearing appellant presents the following argument: “If tender before filing suit be excused, certainly still there should at least be a requirement of tender into Court of the unpaid purchase price before the obtaining of title or to make such payment a condition to the awarding of title by the Court. Otherwise, as pointed out, the Appellees obtain the land without ever making payment, which is certainly not just. * * * It is strongly urged here that even if formal payment into Court accompanying the petition be excused, certainly payment should be required at some stage before title is finally and completely awarded to Appel-lees.”

There might be some merit to appellant’s argument if Cora P. Stallings, Independent Executrix of the Estate of E. A. Stallings, deceased, were a party to this suit, and if we were confronted with the question whether it was appellees’ duty to keep alive their tender to Cora P. Stallings, Independent Executrix, of payment of the balance due on the purchase price. We held in our original opinion that the contract of sale originally entered into between appellees and E. A. Stallings has not been rescinded. It is still in existence. Whatever rights, if any, the seller may have retained under the contract belong now, so far as the record shows, to Cora P. Stallings, Independent Executrix, not to appellant Farrow. Since Cora P. Stallings, Independent Executrix, is not a party to this suit, we shall not pass on the question whether she, if she had been a party to the suit, could have required appellees to keep alive their tender of the payment of the balance of the purchase price.

Appellant Farrow does not claim under and by virtue of the contract, nor does he admit any obligation under it. The contract was never transferred to him. In fact, he repudiates the contract, contending that it was rescinded. He does not have and cannot fairly claim any rights under the terms of the contract. His claim of title rests solely on the deed from Cora P. Stallings, Independent Executrix, which he accepted with notice of the adverse claim of title by appellees. If appellees still owe a duty to anyone to tender the balance of the purchase price before perfecting their title, that duty is not owed to appellant C. Farrow.

The motion for rehearing is overruled.