Jesse Estell v. J. B. D. Cole, 52 Tex. 170

Gould, Associate Justice. It appeared by the averments, of the amended answer that the contract was executory on the part of the vendor, but that the vendee had paid to a third party a part of the consideration, and had made large and valuable improvements; and that the contract contained no express stipulations for its forfeiture, and the forfeiture of the payment and improvements made, on the failure of the vendee to pay the purchase-money notes.

The matters stated in this answer show' such excuse for the failure of vendee to pay, and such misrepresentation and default on the part of the vendor, Chism, as to make it inequitable in the vendor to treat the contract as rescinded, and to resell the land, regardless of the payment and improvements, without some previous notice to the vendee. The amended answ'er proposed to bring the purchase-money into court, less some deductions claimed. The answer appears to have been stricken out on the ground that Estell had forfeited his contract and all payments and expenditures made thereunder.

Our opinion is, that this answer sufficiently excused the failure to pay to prevent (if true and unrebutted by other facts) the forfeiture claimed, the defendant proffering to bring the unpaid purchase-money into court, and that the court erred in striking it out. (Cooper v. Singleton, 19 Tex., 260; Taylor v. Johnston, 19 Tex., 354; Sharp v. Baker, 22 Tex., 306; Demaret v. Bennett, 29 Tex., 267; Hays v. Bonner, 14 Tex., 631; Bingham on Exec.

Cont., ch. 12, p. 818.) The answer of Estell show'ed that by reason of the claim of the Rios to the land, and of the pecuniary irresponsibility of Chism on his warranty, he was in danger of loss, and sought to have Chism and these claimants made parties-to litigate their respective claims. Accordingly, Chism and. the Rios were brought in, and no objection to the proceeding, comes from them.

Cole, the plaintiff, to whom Chism had resold, and who stood in the shoes of his vendor, was the objecting party, and his objection was sustained as to the two parties named Eio, opposing claimants of the land. [Opinion delivered November 14, 1879.] The authorities cited by appellant support the right of the vendee, as against his vendor seeking to enforce payment at law, to resort to equity and make the opposing claimant a party. (Harris v. Smith, 2 Dana, 11,12; Simpson v. Hawkins, 1 Dana, 303; Cooper v.

Singleton, 19 Tex., 267.) It is the opinion of the court that the objection to the Eios being made parties was improperly sustained. The judgment is reversed and the cause remanded. Reversed and remanded