P. Taylor and others v. R. H. Rowland, 26 Tex. 293

Wheeler, C. J. On the authority of repeated decisions of this court, we think it must be held that the plaintiff was entitled to maintain his action for specific performance of the contract of the defendants to convey to him the land in question. (15 Tex. R., 50; 11 Tex. R., 87; 8 Id., 126.) And when it was shown that the defendants had not the ability to make title according to their agreement, it was indisputably the plaintiff’s right to receive compensation in damages for the injury they had caused him to sustain by their failure to fulfill their undertaking.

The only ground of defence to the action taken in the court below which seems to require notice, is the statute of limitations. But it appears that the defendants did not refuse to make title, nor was the plaintiff aware that they could not do so, until in the fall of 1857, less than two years before the institution of the suit. On the contrary, they appear at all times "previously to have professed their readiness to do so. If the plaintiff had brought, his suit for damages, they might have defeated his action and involved him in the costs of the suit by procuring and tendering him a title.

After the refusal to make title, two years had not elapsed at the institution of the suit. The action manifestly was not barred, and the ruling of the court upon that point is wholly immaterial. For any thing that appears in the pleadings of the defendants, or that is suggested by their counsel in argument in this court, the judgment ought ■ to be affirmed. But it appears by the plaintiff's petition that one of the parties who contracted with the plaintiff is dead, and this suit is against his heirs, one of whom, it is averred, is a minor.

The guardian of the minor, if he have one, is not joined; nor, if he have no guardian, was a guardian appointed by the court for the purpose of defending the suit, as the statute required. (O. & W. Dig., art. 562.) To entitle the plaintiff to recover damages against the heirs, it ought to have been averred and proven that the estate was not in process of administration, and that assets of the ancestor had come into them hands. The plaintiff avers his information and belief that the defendants could not make title whpn he framed his petition.

It ought then to have contained averments sufficient to charge the heirs in damages for their ancestor’s breach of contract, if he sought such recovery against them. As the petition might have been amended in this regard, and the defect was not pointed out by pleading or exception, and the recovery against the heirs is not questioned on account of this insufficiency in ,the petition and proof, even in the assignment of errors, we might not deem it our duty to take notice of -it, if it were not for the minority of nne of the hems, who was not properly represented in court.

That is a matter apparent from the petition and proceedings, which the court cannot overlook; and as it requires a revision of the judgment, which appears to be erroneous as to all the$ heirs for the want of sufficient averments and proof to charge them in damages in this action; and the cause of action is joint and the judgment entire, we think it ought to be reversed and the cause remanded to enable the plaintiff to amend his petition, and for further proceedings. Reversed and remanded.