Dorn v. Dunham

24 Tex. 366

• Court: Texas Supreme Court
• Decided: July 1, 1859
• Status: Published

Opinion

Wheeler, C. J.

It is not questioned, that the plaintiffs were entitled to recover, by virtue of the deed of the 10th of September, 1851, if the defendant, Dorn, had acquired no title, legal or equitable, to the land in controversy. It is material, therefore, to inquire as to his title at the date of the conveyance from Mrs. Best to the plaintiffs. When the contract of the 10th of August, 1850, was entered into between Mrs. Best and Dorn, it appears that Mrs. Best was tenant in common with others, having an undivided interest of 2000 acres in the league, of which the land in controversy is a part; until partition she could not convey a part of it to a stranger in severalty. (Heirs of McKey v. Welch, 22 Texas Rep. 390; 1 Hilliard on Real Property, tit. Tenancy in Common, ch. 54, §§ 37-47.) She could make no contract or conveyance to the prejudice of her co-tenants ; she could not convey her co-tenant’s share in a designated portion of the land, or by her own single act, without their consent, make severance or partition of the estate held in common. She could not convey to Dorn a distinct portion of the land by metes and bounds. Notwithstanding her contract with him, her co-tenants might have the part, which he selected, set apart to them in the partition.

By the contract, therefore, with Mrs. Best, Dorn acquired no title or right to the land he selected under the contract; a part of it was set apart, in the partition, to one of her co-tenants, which put it out of her power to make him a title. Thus the matter stood, when the deed of the 18th of July, 1857, under which the defendant, Dorn, now claims, was made and tendered him. That deed was not a compliance with the contract of the 10th of August preceding, under which the defendant went into possession. It was not, therefore, an execution of that contract or agreement. It did not convey the land he had selected, pursuant to the agreement. He was under no obligation to accept it as an execution and consummation of the agreement, because, as he said, it was not a compliance with his contract with Mrs. Best, and did not convey the land he had bargained for. The tender of it was, in effect, but a proposition on her part to convey to him other lands in place of that he had chosen under the contract. It was a proposition to substitute other land; which proposition he was at liberty to accept or not, as he saw proper. He did not see proper to accept, but rejected the proposition, and refused to receive the deed. No interest, therefore, passed by it. The title remained, as before, in Mrs. Best, who, when apprised of the refusal of Dorn to accept the deed, made the conveyance to the plaintiffs, and the title thereby vested in them. She had not previously parted with the title to the land embraced by the deed; and having the title and power of disposition, could dispose of it as she saw proper; she could give it to her grandchildren, which she did. If she had broken her agreement with Dorn, by contracting to do what it was not in her power to perform, he had his remedy for the breach of contract; but he did not thereby acquire any title to the land. He had none as against the co-tenant of his vendor, who was not a party to the contract, and none, as against Mrs. Best, to this land, which she had not contracted to sell him.

After the deed to the plaintiffs was made and delivered by Mrs. Best, she, having thereby parted with her title, had none to convey to the defendant, Dorn; and if he afterwards came into possession of the deed, which she had previously tendered him and he had refused to accept, with notice of the plaintiffs’ .title, it could not avail him, by whatever means obtained. Having notice of the plaintiffs’ title, he is not an innocent purchaser, though he had paid value; and it was only as such, that he could acquire the title from Mrs. Best, after her conveyance to the plaintiffs.

The charge of the court was altogether favorable to the defendant. It made it necessary for the plaintiffs to satisfy the jury that the defendant had abandoned the contract, and that he had paid no part of the purchase-money; and that the deed under which he claims was obtained by fraud. In the view we have taken of the case, he never acquired any title or right to the land here in controversy. His contract did not give him a right to this land; and standing upon his contract, he refused, as he had the right, to accept this in place of the land he had contracted for. He had a right to refuse his assent to any variation of the terms of his contract, or to refuse a deed tendered as an execution of the contract, which did not convey the identical land he had bargained for; reserving his remedy upon the contract for the breach of it, as he did. The plaintiffs’ right to a recovery, therefore, does not depend upon his supposed abandonment of the contract, or the supposed fraudulent procurement by him of the deed' under which he now claims, but upon his never having acquired the title to the land in controversy. If there be error in- the charge of the court, it was not to the prejudice of the defendant; and upon the question of the plaintiffs’ title and right to recover, there is, we think, no error in the judgment.

The remaining question is, whether the court erred in excluding evidence offered by the defendant, in support of his suggestion of the good faith of his possession, and his claim for compensation for improvements. It does not appear by the bill of exceptions, upon what ground the evidence was excluded. The reasons suggested in argument for its exclusion, are not satisfactory, and I am unable to perceive any legal ground, upon which the right to introduce the evidence can be denied. It is suggested, that as the defendant is not charged with the rents and profits, arising from the use and occupation of the land, he is not entitled to compensation for improvements. But it must be observed, that the right to recover for improvements, is not dependent upon the claim for rents and profits, nor is it limited to cases where rent is claimed, or compensation for the use and occupation is allowed. It is independent of such claim on the part of the plaintiff. (Scott v. Mather, 14 Texas Rep. 235; Saunders v. Wilson, 19 Id. 194.)

It is said, the defendant is entitled to the land, or he is entitled to nothing. It may so appear upon the whole evidence, when it shall have been heard and considered. But the argument assumes the very question at issue; that is, whether the defendant, not being entitled to hold the land, as against the plaintiffs, is entitled to compensation for his improvements. If it be intended to maintain, that the defendant must have a good title, to admit proof of the good faith of his possession, and the value of his improvements, it is plainly not correct. It is only where the defendant’s title is defective, or the plaintiff has the superior title, that the question respecting improvements, can arise. The defendant’s right to compensation for improvements, does not depend upon the intrinsic goodness of his title, but upon the good faith of his possession, and claim of title. If he be a possessor in good faith, within the meaning of the statute, (O. & W. Dig., Art. 2044,) he will be entitled to compensation, for the permanent and valuable improvements he has made upon the land, while so in possession, though it should turn out that his title is defective, or that another has the superior title. And this upon the equitable principle, recognised by the legislature in enacting the statute, that where the party making the improvements, has acted bond fide and innocently, and there has been a substantial benefit conferred on the owner, ex aequo et bono, he ought to pay for such benefit. A bond fide possessor, has been defined to be one, who not only supposes himself to be the true owner of the land, but who is ignorant that his title is contested, by any person claiming a better right to it. (Green v. Biddle, 8 Wheat. 1; Bright v. Boyd, 1 Story, Rep. 478; Houston v. Sneed, 15 Texas Rep. 310; and see Saunders v. Wilson, 19 Texas Rep. 194.) In Sartain v. Hamilton, this definition was quoted with approbation, but it was intimated, that notice of an adverse, claim, would not necessarily destroy the good faith of the possession. But it was said, the person aware of the claim of another, must have reasonable and strong grounds, to believe in the soundness of his own title ; otherwise he cannot claim to be a possessor in good faith. (12 Texas Rep. 222.)

The definition, with the qualification subjoined by the Chief Justice, in Sartain v. Hamilton, is perhaps as accurate an expression of the meaning of “good faith,” as employed in the statute, as can be given. As a general rule, to constitute one a possessor in good faith, he must not only believe that he is the true owner, and have reasonable ground for that belief, but he must be ignorant that his title is contested by any person claiming a better right. But there may be cases, where, though aware of an adverse claim, the possessor may have reasonable and strong grounds to believe such claim to be destitute of any just or legal foundation, and so be a possessor in good faith. He must have reasonable ground to believe, that he is himself the true owner of the land; and this, as I conceive, is the principal test.

In Robson v. Osborn, 13 Texas Rep. 307, 308, we held, that one who purchases from a person, acting as an agent, constituted by law to sell the land of another, but who had not the power to sell, must look to the authority of the agent, and if he either knew, or by the use of reasonable diligence might have known, the want of power 'in the agent, he could not be a possessor in good faith. I do not doubt the correctness of the general principle. It is in accordance with the rule of the Spanish civil law, as stated by the Chief Justice in Saunders v. Wilson, 19 Texas Rep. 198; that is, that a possessor, who enters under a title acquired from another, with notice that his vendor had no power to sell, holds in bad faith. Though I think the general principal correct, I think it proper to take this occasion to say, I have since had reason to doubt the correctness of its application in that case, and I think it proper to express this doubt, in order that the case of Robson v. Osborn, may not be thought to conclude that question, in any case which may hereafter arise.

It is unnecessary to pursue the inquiry, as to what will constitute a possessor in good faith. It is not dependent upon the goodness of the title of the party in possession.

But it is insisted, that the defendant, Dorn, went upon the land in question, with notice that his vendor was a tenant in common, that her portion of the land had not been severed and set apart to her, and, consequently, that she might not have it in her power to make title to the part he selected. Whether he had such notice, was a question to be decided by the jury. The court could not assume and act upon it, as a fact established, and make it the basis of excluding evidence, relevant to the issue made by the pleadings. It was the province of the jury to pass upon the evidence. However it may have tended to show a knowledge of the state of the title, and the want of good faith on the part of the defendant, still, it was the province of the jury to pass upon it; and however it might appear to the court, that could not be a ground for rejecting the defendant’s evidence. Matters in evidence before the jury, could not be taken as established by legal proof, and made the ground of judicial action, until passed upon by them. The jury may not have found that the defendant had notice of the state of the title; or he might have proved to their satisfaction, that he was led to believe, and had reasonable grounds of belief, from the acts and declarations of all the parties in interest in the estate, that the land he selected was to be set apart, by their common consent, to his vendor ; and that she would be able to make him the title, according to her agreement. It certainly is not inconceivable, that he might have satisfied the jury that he was a possessor in good faith, and entitled to pay for his improvements made before he was apprised of the partition, and the difficulty in the way of his obtaining the title. It would have been proper for the court, to instruct the jury upon the law which should govern them, in deciding upon his right to compensation for his improvements. But we think it was error to exclude the evidence; for which the judgment must be reversed and the cause remanded for further proceedings.

Reversed and remanded.