Holman and others v. Criswell, 13 Tex. 38

Hemphill, Ch. J. This is a suit for specific performance. The plaintiff alleges that Jerome B. Alexander, in his life time, on the 3pth December, 1840, executed to one Horatio Griffith his bond for title to 220 acres of land ; that the said Horatio Griffith, on or about the 18th of February, 1847, assigned his interest in said bond and the land therein to be conveyed to one Michael B. Griffith, who afterwards, in 1849, assigned said bond to petitioner. A copy of the bond and assignments is made a part of the petition. The condition of the bond is, that whereas Horatio Griffith purchased of Jerome B.

Alexander two hundred and twenty acres of land for two hundred and twenty-five dollars, the receipt of which is acknowledged, the land to be selected out of either corner of a half league of land lying on the waters of Buckners’s Creek, belonging to the heirs of Benjamin Green, being part of the said Green’s headright, the said J eróme B.

Alexander binds himself, his heirs, &e., to make the selection to the best advantage, as he would for himself, and have the same legally surveyed, and make or cause to be made a good and bonajide title or deed, embodying the field notes therein, to the said Horatio Griffith, his heirs, &c., the said Griffith holding himself responsible to the said Alexander for the surveying and recording fees, &c.

The petition further alleges that the only part of Green’s league of land to which Alexander had any title, was two hundred and twenty-five acres which are set out by metes and bounds ; that Alexander departed this life in 1842 ; that his wife and son, Jerome, a minor, are Ms only heirs, and that his wife subsequently intermarried with one John T„ Holman, who, together with the said wife and the minor, J eróme, are made parties defendant. The petition then alleges that by virtue of the execution of the bond by the said Jerome B.

Alexander, and the various assignments and transfers by the parties therein described, the petitioner is entitled to a judgment and decree of the said Court, divesting the defendants of all title and interest in two hundred and twenty out of the two hundred and twenty-five acres of land, and vesting the same in the petitioner. The other matters set forth in the petition need not be noticed. The defendants filed a general demurrer and other pleas to which reference is unnecessary, as the only point which will be examined is that which arises on the assigned error in overruling the demurrer.

The grounds assumed by counsel in their elaborate argument in support of this assignment are, 1st. That there is no averment of breach of the conditions of the bond; 2nd. That the plaintiff has no interest in the land, the transfer to him (set forth in the petition,) being without seal. To sustain the first ground, several authorities have been cited from Common Law writers and Reports, to the- effect that in actions on penal bonds breaches must not only be assigned but stated with such particularity and certainty that the defendant may know what to defend.

This action, however, if brought in Courts where there is a distinction between Law and Equity, would have been prosecuted in a Court of Equity. But there is no material difference, in substance, in the certainty with which the grounds of complaint must be set forth, whether an action be instituted in the one forum or the other.

In Equity the bill must state, not only the right title or claim of the plaintiff, with accuracy and clearness, but also the injury or grievance of which he complains, or in other words, in cases such as the one before the Court, the breach or non-performance of his obligations on the bond. Our own statute, however, furnishes the authoritative rule as to the matters which must be set forth in the petition, and. this requires a full and clear statement of the cause of action with such other allegations, pertinent to the cause, as may be deemed necessary to sustain the suit. (Hart. Dig.

Art. 671.) Referring to the authorities to ascertain the definition and scope of the phrase “ cause of action,” we find that the breach of contract or covenant sued upon is one of its essential elements.

Chitty, in treating of the statement of the cause of action in assumpsit, says that the breach of the contract, being obviously an essential part of the cause of action, must, in all cases, be stated in the declaration, (Vol. 1st, p. 322,) and its omission cannot be cured even by verdict. (Id. p. 337.) This is said in treating of the statement of the cause of action in assumpsit, but the rule is the same in actions of debt, covenant, &e. The rule is founded in good sense, and has as much application in our system of pleading as in any other.

Unquestionably, in the nature of things, there can be no cause of action where no injury has been done. The invocation of the remedial aid of a Court necessarily pre-supposss the infliction of some wrong for which redress is sought, and this wrong must, as a matter of course, be stated in all Courts where the formality of pleading is required; and if it be not averred, no-such case is made as entitles the complainant to the interposition of the Court.

The only difficulty in holding that the averment of breach is in all cases an essential portion of the statement of the cause of action, consists in this, that in some cases it is not incumbent on the plaintiff' to prove the breach or non-performance of the contract or covenant. Its execution being established and its maturity passed, its breach will be presumed. There is no doubt that as a general rule the plaintiff cannot be compelled to assert more facts than on a general denial he would he bound to prove in order to sustain his case.

We have repeatedly held that he cannot prove what he has not alleged, and as a general rule he ought not to be compelled to allege what he is not bound to prove.

But there is another general rule, of like cogency and pervasive influence in pleading, and which is specially applicable to the question at issue, and that is, the plaintiff'must allege such facts in his petition, as would, were they admitted to be true, entitle him to a judgment; and this certainly he could not demand unless he complained that some wrong or injury had been done him, or that some right had been withheld, Bor instance, in this case it may be true that Alexander entered into the obligations which had been averred. The demurrer admits that such is the fact.

But this fact alone would, not authorize a decree for specific execution. The bond may have been fulfilled. The obligor may not have refused, expressly or impliedly, to perform its stipulations. If so, the plaintiff has no ground of complaint, or to apply to the Court for relief.

He has not stated that the obligations have not been performed, and if on'his averment merely that such obligations were made, judgment be given in his favor, the absurdity might "be presented of a judgment "being for him when in fact he had no ground to complain against the defendant, and this too when he had not stated that he had any such ground, and when the defendant may fully have discharged his obligations. It is true that the plaintiff has alleged that he is entitled to judgment. But this is a legal conclusion drawn by the pleader, from the facts stated.

It is not a fact, and consequently, is not admitted by the demurrer, whose office is to admit facts only, and those which are well pleaded. The circumstance that the plaintiff would not, on the trial, by the rules of evidence, be required to prove that the conditions of the bond had not been fulfilled, that such would be the jmma facie presumption on the introduction of the bond, does not relieve him from the necessity of making out such a case by his allegations, as would, if their truth were admitted, be followed by judgment in his favor.

Where suit is "brought on a note of hand, the execution of the note, unless denied on oath, need not be proved, nor is the fact of nonpayment to be established by proof; but this certainly would not exempt the plaintiff from stating that such note had been made, and that it had not been paid, or other equivalent averments of its execution and subsisting obligation; and without such averments the petition would be insufficient, as not showing that any wrong had been done, or that the plaintiff had, in fact, any cause why he should bring his action. The rules of evidence may be changed or modified.

Parties may not in special cases be required to prove the facts which constitute their cases. But this does not relieve them, if they plead at all. from the necessity of stating such a case as would on its face be entitled to relief from the Court. We are of opinion that on the first ground, viz: the want of assignment of breach, the demurrer should be sustained. The other ground of demurrer, viz: that the plaintiff has no interest in the land, the transfer to him being without seal, is not tenable.

A contract for the sale of lands is not, by the statute, required to be under seal; and whether the agreement assume the form of a bond for title, or other form, is not' material. The signature alone,of the vendor is sufficient. Now, the interest which the vendee has under such contract of sale, is assignable, and as it vested in him by a conveyance without seal, so, is like manner, may it be transferred to another. In Durst v. Swift, (11 Tex.

R. 280,) it was stated to be not essential to the validity of the assignments of the bond-in that ease, that they should have been by deed or writing under seal; and in support of this were cited 15 Mass. R. 485; 16 Johns. R. 51; 1 N & Mc. R. 250. The bond was, in that ease, as in this, a title bond, and one of the assignments there, as here, was without seal. Vide Worrall v. Mun, 1 Selden, 229. Judgment reversed and cause remanded. Beversed and remanded.