J. H. Baldridge and others v. William M. Cook, 27 Tex. 565

Moore, J. The distinctions between executed and executory contracts for the sale of land, are recognized and clearly defined by this court in the case of Cooper v. Singleton, 19 Tex. Rep., 260. The general rule enunciated in that case, that so long as the contract remains executory the purchaser shall not be compelled to pay the purchase money and take a defective title, has been uniformly sustained and followed in the subsequent decisions of the court, (Hurt v. McReynolds, 20 Tex. Rep., 601,) and other cases in manuscript not yet reported, and must now be regarded as settled law in this court.

This general rule, however, is not without qualification or exception, and in the case of Cooper v. Singleton, it is said, if the vendee knew of the defect in the title at the time of the purchase, without stipulating for a covenant as security against it, he consents, in effect, to take the risk of the purchase upon himself. It is evident from the contract between the parties in this case, as well as the admissions in the petition of the appellants, that they were fully apprised at the time of their purchase that appellee’s title to the land was in dispute and litigation.

They did not, however, take upon themselves the risk of the failure of the title from the ultimate determination of the controversy in which it was involved; but for security for this or any defect in the appellee’s title, they bound him in the penalty of twenty thousand dollars to make, or cause to he made to them on their payment of the purchase money and the completion of their improvements stipulated for in the contract, “ a full, perfect and general warranty deed in fee simple.” If the appellants had not known when they entered into this contract, of the dispute about the title, and they had not evidently contracted with reference to this state of facts, they could have required the appellee to have placed himself in a position to have conveyed to them a valid title before enforcing the payment of the purchase money.

It is very apparent, however, from the statements of the appellants themselves, that the parties must have known that the litigation in which the land was involved, might be protracted for years; that no definite period could be fixed for its final termination. The payment of the purchase money was stipulated for at a day certain. It was not made dependent upon the termination of the litigation, in which the title to the land was known to he involved.

We are of the opinion, therefore, that the parties did not intend at the time of entering into the contract, that by its stipulations appellee was bound to bring the suit respecting the land to a successful termination, before he could require from the appellants payment of the purchase money. They contracted with reference to the situation and condition of appellee’s title, and relied for protection upon the covenants of warranty for which they stipulated.

The right of the appellants to relief in this case, therefore, depended upon the fact whether, as they allege, appellee had made false and fraudulent representations to them in respect to his title, by which they were deceived, or whether there had been any new development as to the title since. the contract was made, or appellee’s ability to respond upon a breach of his covenants had since that time undergone a material change.

The allegations of the petition in these particulars are, however, fully met and repelled by the answer, and the action of the court in dissolving the injunction was, therefore, unquestionably correct. But, although the injunction was properly dissolved upon the denial of the equity of the petition by the answer, appellants insist that there was error in dismissing the petition.

Unquestionably, if they had have asked it, the petition should have been continued over as an original suit, and the appellee required to have given bond to refund the money which he was seeking to collect in the event of a final decree in appellants’ favor. (Art. 1022, O. & W. Dig.) But they failed to ask that this should be done. If they desired that the petition should stand over as an original suit, it was their duty to have called the matter to the attention of the court, and to have requested that the case should be given this direction.

Having failed to do so, they cannot complain if the court assumed, from them apparent acquiescence, that they were consenting, if not desirous of a final disposition of the case. The bill of exception shows that appellants proposed to prove that appellee was insolvent; but this seems to have been for the purpose of sustaining the injunction, and cannot, therefore, be regarded as indicative of a wish that them petition should stand over as an original suit.

It is also to be observed that it was not proposed to show that appellee’s alleged insolvency had occurred since they contracted for the purchase of the land, nor in fact do they so charge in their petition. There is no error in the judgment, and it is affirmed. Judgment affirmed.