William A. Browning, Appellant, vs. James D. Estes, Appellee, 3 Tex. 462

Chief Justice Hemphill, after stating the facts, delivered the opinion of the court. In the argument of this cause, it was contended that the land had been actually sold to the vendee, and that the agreement for sale was not executory but executed.

We cannot assent to this proposition, nor to the construction by counsel of the terms of the bond for title, nor do we deem this construction sufficiently doubtful to require a critical ex.amination for the expression of the instrument, especially as the jury has found that the parties contracted and bargained for the sale of the land, and not that the land had been actually sold.

The first point, then, for consideration is, whether a vendor •can maintain an action for the recovery of lands against a ven-dee who has entered, with the assent of the vendor, into possession, but who has made default in the payments stipulated in the contract, and which were conditions precedent to the execution of the conveyance to the vendee. The affirmative of this proposition seems now to be well settled law, and is sustained so abundantly by the authorities as to be placed beyond question.

It is true that the' possession of the vendee, who entered with the assent of the vendor, is lawful, nor can it be disturbed so long as he performs with fidelity the obligations imposed by the stipulations of the contract, and those which flow from the relation subsisting between the vendor and vendee.

But the character of this possession is changed and becomes tor-tious, when the vendee disaffirms the contract, disavows the title under which he has entered, or refuses payment of the purchase money, or such portion as may be due, etc., etc., and he then becomes liable, as a trespasser, to eviction, at the suit of the vendor. Whether a mere failure to pay, without notice to quit or demand of possession of the premises, will sustain the action, is not well settled, as there is a contrariety of decisions.

But •this point will not now require examination, as there was in -this case not only a failure, but a refusal, to pay or to restore possession of the lands. In support of the position that the action can be maintained, we will refer to some of the numerous cases in which the point has been adjudicated. In Marlin vs.

Willieck et al. 7 Serg. & Rawle, 297, it was decided that after articles for the sale of land, on which the vendor received part of the purchase money, and the residue was payable by installments, if the terms of payment had long -expired' without payment by the vendee, before or after suit brought, the vendor may recover in ejectment against the vendor. In Wright vs.

Moore, 21 Wendell, a purchaser in a contract for the sale of lauds was to pay down a portion of the pur•chase money, enter into immediate possession, and pay the remainder by installments, at deferred periods, and the vendor was to execute a conveyance in two months; it was held that the vendor could maintain ejectment on default of payment of the second installment, though the first was paid, and though he did not, before bringing suit, tender a deed. It was ruled in the case of Power vs. Ingram, 3 Barbour’s Sup. C.

Rep. 576, that where a person enters into possession of the land of another, with his assent, under a contract to purchase the same, the vendor may maintain ejectment against him after default in either of the payments stipulated in the contract, without the previous service of a notice to quit. [ Vide Kenada vs. Granger, 3 Barbour, 590; Harle vs. McCoy, 7 J. J.

Marshall, 318; 7 Blackford, 142; 5 Wendell, 26.] That the vendor has, on default of vendee, superior right to the premises agreed to be sold, will be clearly perceived by reference to cases which determined, in effect, that where lands were purchased on a credit, and a bond was taken for title when the purchase money should be paid, on failure of the vendee to pay according to the terms stipulated, the vendor might consider the contract at an end, and could lawfully sell to another person. [Vide Holloway vs. Moore, 4 Smedes & Marshall; Kinney’s Law Compendium, vol. 2, pp. 60, 61.] In Hatch vs. Cobb, 4 J. C.

R. 553, it appeared that the vendee had made default in the payments, which by the contract were made a condition precedent to the conveyance. That the vendor had accepted a payment subsequent to the default, and having repeatedly afterwards called for payments, which were not made, he subsequently assigned his interest to a third person, the chancellor held that he was not bound to wait longer, but had a clear right to exact immediate payment, or else to part with bis interest in the land to another, to meet his own convenience or necessities.

The defendant has pleaded the statute of limitations in bar of the action, but this defense is available only where the possession has been adverse, and not when taken by virtue of the assent and permission of the plaintiff. And it is a settled principle of law that a possession of land, taken under an executory contract for the purchase thereof, is in no sense adverse to the person with whom the contract is made. [ Vide Adams on Ejectment, p. 31; in notes 5 Law, 74; Mass.

Rep. 325; 2 Nott & McCord, 417; 5 Littell’s Rep. 318; 3 Littell’s Rep. 34.] .There are exceptions to the general rule; as, for instance, where the whole of the purchase money has been paid, and the stipulations imposed on the vendee by the contract have been fulfilled, he may hold adversely to the vendor, and other circumstances may be imagined which might impress an adverse character on the possession. But as none of these are in this case, such exceptions need not be further noticed or considered. [ Vide 16 Peters, 25, 53, 54; Barton vs.

Morris, 15 Ohio, 408.] The judgment may operate with some severity upon the appellant, but the pleadings and facts proved do not admit of the award of any other, or of one by which exact justice would be distributed to the parties. Had the defendant claimed under an absolute conveyance, his refusal to pay after action was barred by limitation on the notes, would, perhaps, have left the vendor without redress. But, entering under an executory contract, such disloyalty to-the relation subsisting between him and his vendor could not be permitted to operate to the defeat of the rights of the latter.

His right to the lands could not be successfully contested until the vendee had performed the conditions precedent to-the conveyance; and on failure to do so, the principles of morality, as well as the rules of law, require a restoration of the premises to the vendor. A vendee cannot be permitted to renounce his contract, and yet enjoy the advantages resulting from its complete execution. In his answer he claims adversely to the vendor, without alleging a compliance with the terms of the contract, or even a willingness to perform its stipulations.

Had he not disclaimed the fiduciary relation snbsisting between him and his vendor, and had he paid the whole of the money before or after suit brought, or offered to pay the same into court, I have no doubt that under our blended system of law and equity, the defendant might, by a proper prayer for relief, have been entitled to a decree for a conveyance from the vendor, at the costs and charges of the vendee. .This or some other suitable relief would doubtless have been awarded under the circumstances of this case, in which the vendor had, by receiving payments repeatedly, acquiesced in the previous defaults of the purchaser.

But he has disavowed the contract, and claims in hostility to his vendor, and has left the court no other alternative than to award the lands to him who holds the superior right.

The fact of his ability to pay any recovery that may be had on the notes is altogether immaterial, or rather it aggravates the tortious character of his possession, as it shows clearly that his failure to comply with his obligations does not arise from accident, misfortune or the pressure of sudden poverty, but from a deliberate abandonment of his contract, and a design to be unfaithful to the duties imposed on him by law, the principles of equity, and the force of his own stipulations.

No question is raised by the pleadings as to the plaintiff’s right, after the action brought for ejectment, to institute suit for the unpaid residue of the purchase money. What effect in law the existence of one of the suits should have upon the right of recovery in the other, can be determined when the facts are presented in such shape as to require examination and decision.