Delany, J. Com. App.
The first assignment of error is as follows: “ The court erred in overruling defendant Estell’s exceptions contained in his first amended original answer ... to plaintiff’s first amended original petition, filed December 9, 1881.”
It appears that pending the suit the plaintiff sequestered the property, and has held possession ever since.
When the case went back to the district court upon the reversal of the former judgment, the plaintiff alleged that he had made valuable improvements upon the land in good faith, and asked that he be allowed their value in the event of a recovery by the defendant Estell.
To this pleading Estell excepted, and this exception was overruled.
In this we think there was error. Our statute, which allows a party to make claim for improvements, requires him to allege that he has been in possession for “ at least one year next before the commencement of such suit.” R. S., art. 4813. See, also, Henderson v. Ownby, 56 Tex., 647.
The second assignment is as follows: The court erred in sustaining special exceptions 1, 2, 3, 5 and 6 of plaintiff to defendant’s first amended original answer, and in sustaining special exceptions 1 and 3 to defendant’s trial amendment.
The first exception is as follows:
“ Plaintiff excepts to so much of said answer as sets up that it was agreed that Estell should have absolutely one hundred and seven acres of said land, because it appears from said plea that said bond or conveyance was in writing and made a part thereof, and that defendant seeks to vary and change said written instrument by contemporaneous parol statements, and does not show any fraud, accident or mistake, and because it sought to show a sale of land by parol evidence.”
[699]*699The plea, however, does state that the instruments were so executed “ through inadvertence and mistake.”
The bond is as follows:
“ State of Texas, County of McLennan: Know all men by these presents, that I do this day give Jesse Estell, a freedman of McLennan county, state of Texas, a title bond to one thousand one hundred and seven acres of land, being the southeast portion of the Sam Gholson headright, for and in consideration of his notes, one for 8666,66⅔, payable twelve months from date, the second note payable in two years for- $666.66f, the third note payable in three years for $666.66⅔, all of said notes bearing ten per cent, interest per annum from date. I, John Chism, of Limestone county, state of Texas, do hereby bind myself, my heirs and assigns, to warrant and forever defend unto the said Jesse Estell, his heirs, executors, adminstrators or assigns, the title of said land against all claims or claimants whatsoever. Given under my hand, this, the 15th day of January, 1867.
“Witnesses: his
“ C. Varner, Join X Chism.”
“B. A. Nalley. mark
The notes actually given do not correspond with the notes described in the bond, the first note given being for only $438⅓.
The plea of the defendant to which the first exception was taken explained the matter in this way:
Chism, before the sale to defendant, had sold the same land to one Black, who had put improvements upon it of the value of $500. They then rescinded the sale, Chism agreeing to account for the value of the improvements.
Defendant then purchased the land at $2 per acre, which would amount to $2,214; but it was agreed that defendant was to pay Black for the improvements, and for this he was to have a clear title to one hundred and seven acres of the land, which, at the agreed price, would amount to $214, and the remainder of the payment to Black was to go as a credit on the first payment or note.
The bond, however, in its present form, had already been drawn by one Kalley, and three notes, each for $666⅔.
Estell refused to sign the notes until the proper credit was allowed upon the first one, and it was finally agreed that the first note should be drawn as it now stands, for $438⅓.
But no separate deed was drawn for the one hundred and seven acres of land, it being supposed by the parties that the bond for the whole tract would answer the same purpose. Now, even if we [700]*700admit that the court erred in its ruling, it is not probable that Estell was injured. By his own showing he was to pay $2,214 for the land. The notes which he executed, when added together, amount to $1,771.66⅔, which, when subtracted from the former, leaves about $443, or nearly the sum which he was to pay for the improvements. The testimony renders it probable that this was the agreement.
The second and third exceptions which were sustained by the court related to those parts of the answer which set up the existence of certain outstanding titles as was done in the original answer.
The objection to the pleading was, that it did not allege that these outstanding titles were superior to that conveyed to the defendant by Chism.
In our opinion this objection was entirely without foundation, and the court erred in sustaining it.
We may remark that as Cole purchased with full knowledge of the rights of Estell, anything which would be a good defense against Chism would be good against him. Story’s Eq. Juris., secs. 395, 396.
Estell did not hold under a deed of conveyance. His contract with Chism was executory; the instrument was in substance and effect, as well as in name, a bond for title.
Under these two classes of contracts, the rights of a vendee are widely different.
Under the former, if he would resist the payment of the purchase money, he should allege and show, beyond a doubt, that the title has failed in whole or in part, and that there is danger of eviction; but under the latter he need only allege and prove that the title is defective, unless he understood the facts at the date of his purchase and agreed to take such title as the vendor could give. And the proof of these latter facts is to be made by the vendor. Cooper v. Singleton, 19 Tex., 260; Rawle, Cov. for Title (4th ed.), pp. 41, 42, 565.
The last named writer uses this language: “ It is familiar that the general principles of the contract of sale, both in this country and in England, recognize and enforce, while it is executory, the right of a purchaser to a title clear of defects and incumbrances. This right is one not growing out of the agreement of the parties, but which is given by the law; and it naturally follows, that a court of equity will not decree a specific performance of a contract where the title is bad, or even as it has been said in modern times, where it is doubtful.” P. 42.
This language is cited with approval by Hr. Justice Wheeler in Vardeman v. Lawson, 17 Tex., 16.
[701]*701Soon after the suit was brought, Estell in his answer set up the adverse claim under the Moreno grant, and asked that his vendor, Chism, and the claimants under that grant be made parties. Chism in his answer admitted that the Moreno grant was a cloud upon his title, and asked that the holders of that grant be made parties. They appeared, and, being non-residents, sought to remove the case to the federal court. But they were dismissed upon the motion of the plaintiff.
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Delany, J. Com. App.
The first assignment of error is as follows: “ The court erred in overruling defendant Estell’s exceptions contained in his first amended original answer ... to plaintiff’s first amended original petition, filed December 9, 1881.”
It appears that pending the suit the plaintiff sequestered the property, and has held possession ever since.
When the case went back to the district court upon the reversal of the former judgment, the plaintiff alleged that he had made valuable improvements upon the land in good faith, and asked that he be allowed their value in the event of a recovery by the defendant Estell.
To this pleading Estell excepted, and this exception was overruled.
In this we think there was error. Our statute, which allows a party to make claim for improvements, requires him to allege that he has been in possession for “ at least one year next before the commencement of such suit.” R. S., art. 4813. See, also, Henderson v. Ownby, 56 Tex., 647.
The second assignment is as follows: The court erred in sustaining special exceptions 1, 2, 3, 5 and 6 of plaintiff to defendant’s first amended original answer, and in sustaining special exceptions 1 and 3 to defendant’s trial amendment.
The first exception is as follows:
“ Plaintiff excepts to so much of said answer as sets up that it was agreed that Estell should have absolutely one hundred and seven acres of said land, because it appears from said plea that said bond or conveyance was in writing and made a part thereof, and that defendant seeks to vary and change said written instrument by contemporaneous parol statements, and does not show any fraud, accident or mistake, and because it sought to show a sale of land by parol evidence.”
[699]*699The plea, however, does state that the instruments were so executed “ through inadvertence and mistake.”
The bond is as follows:
“ State of Texas, County of McLennan: Know all men by these presents, that I do this day give Jesse Estell, a freedman of McLennan county, state of Texas, a title bond to one thousand one hundred and seven acres of land, being the southeast portion of the Sam Gholson headright, for and in consideration of his notes, one for 8666,66⅔, payable twelve months from date, the second note payable in two years for- $666.66f, the third note payable in three years for $666.66⅔, all of said notes bearing ten per cent, interest per annum from date. I, John Chism, of Limestone county, state of Texas, do hereby bind myself, my heirs and assigns, to warrant and forever defend unto the said Jesse Estell, his heirs, executors, adminstrators or assigns, the title of said land against all claims or claimants whatsoever. Given under my hand, this, the 15th day of January, 1867.
“Witnesses: his
“ C. Varner, Join X Chism.”
“B. A. Nalley. mark
The notes actually given do not correspond with the notes described in the bond, the first note given being for only $438⅓.
The plea of the defendant to which the first exception was taken explained the matter in this way:
Chism, before the sale to defendant, had sold the same land to one Black, who had put improvements upon it of the value of $500. They then rescinded the sale, Chism agreeing to account for the value of the improvements.
Defendant then purchased the land at $2 per acre, which would amount to $2,214; but it was agreed that defendant was to pay Black for the improvements, and for this he was to have a clear title to one hundred and seven acres of the land, which, at the agreed price, would amount to $214, and the remainder of the payment to Black was to go as a credit on the first payment or note.
The bond, however, in its present form, had already been drawn by one Kalley, and three notes, each for $666⅔.
Estell refused to sign the notes until the proper credit was allowed upon the first one, and it was finally agreed that the first note should be drawn as it now stands, for $438⅓.
But no separate deed was drawn for the one hundred and seven acres of land, it being supposed by the parties that the bond for the whole tract would answer the same purpose. Now, even if we [700]*700admit that the court erred in its ruling, it is not probable that Estell was injured. By his own showing he was to pay $2,214 for the land. The notes which he executed, when added together, amount to $1,771.66⅔, which, when subtracted from the former, leaves about $443, or nearly the sum which he was to pay for the improvements. The testimony renders it probable that this was the agreement.
The second and third exceptions which were sustained by the court related to those parts of the answer which set up the existence of certain outstanding titles as was done in the original answer.
The objection to the pleading was, that it did not allege that these outstanding titles were superior to that conveyed to the defendant by Chism.
In our opinion this objection was entirely without foundation, and the court erred in sustaining it.
We may remark that as Cole purchased with full knowledge of the rights of Estell, anything which would be a good defense against Chism would be good against him. Story’s Eq. Juris., secs. 395, 396.
Estell did not hold under a deed of conveyance. His contract with Chism was executory; the instrument was in substance and effect, as well as in name, a bond for title.
Under these two classes of contracts, the rights of a vendee are widely different.
Under the former, if he would resist the payment of the purchase money, he should allege and show, beyond a doubt, that the title has failed in whole or in part, and that there is danger of eviction; but under the latter he need only allege and prove that the title is defective, unless he understood the facts at the date of his purchase and agreed to take such title as the vendor could give. And the proof of these latter facts is to be made by the vendor. Cooper v. Singleton, 19 Tex., 260; Rawle, Cov. for Title (4th ed.), pp. 41, 42, 565.
The last named writer uses this language: “ It is familiar that the general principles of the contract of sale, both in this country and in England, recognize and enforce, while it is executory, the right of a purchaser to a title clear of defects and incumbrances. This right is one not growing out of the agreement of the parties, but which is given by the law; and it naturally follows, that a court of equity will not decree a specific performance of a contract where the title is bad, or even as it has been said in modern times, where it is doubtful.” P. 42.
This language is cited with approval by Hr. Justice Wheeler in Vardeman v. Lawson, 17 Tex., 16.
[701]*701Soon after the suit was brought, Estell in his answer set up the adverse claim under the Moreno grant, and asked that his vendor, Chism, and the claimants under that grant be made parties. Chism in his answer admitted that the Moreno grant was a cloud upon his title, and asked that the holders of that grant be made parties. They appeared, and, being non-residents, sought to remove the case to the federal court. But they were dismissed upon the motion of the plaintiff. The supreme court, upon appeal by Estell, said that the answer sufficiently excused the failure to pay, to prevent (if true and unrebutted by other facts) the forfeiture claimed. Estell v. Cole, 52 Tex., 170.
While the appeal was pending in the supreme court, Estell was defending in the federal court this title against the claimants under the Moreno grant. We take it that his pleadings in this cause not only notified Chism of the hostile claim, but amounted to a call upon him to defend the title. In the federal court judgment was rendered against Estell, and he bought his peace by a compromise, and thus silenced the opposing claim.
This was done before the plaintiff filed his amended pleadings upon which the last trial was had. In these pleadings the plaintiff makes no allusion to these opposing claims, nor does he introduce any evidence concerning them. Chism, in his amended answer, withdraws his former pleading above alluded to and joins in the plaintiff’s prayer against Estell.
And when Estell in his amendment set up these facts and asked that he be allowed, as a credit upon his notes, the necessary expense of extinguishing the opposing claim, the court excluded that part of the answer upon exception by the plaintiff.
In this, we think, the court erred. From the character of the contract between Chism and Estell; from the representations made by the former at the time of the sale, that the title was clear and unembarrassed, our opinion is that it was his duty to make good his representations and clear up the title: Upon his failure to do so, we think equity would allow to Estell a reasonable compensation for doing what should have been done by his vendor. Roberts y. Love-joy, 60 Tex., 253, and cases cited.
It has been held that, when a vendee holding under a deed with general warranty is evicted, and brings suit upon the covenant of warranty, he cannot recover attorneys’ fees “ when there is no question of fraud, imposition or malicious conduct involved.” Turner v. Miller, 42 Tex., 421.
As it does not appear that there was, in this case, any intentional [702]*702fraud practiced by Chism upon his vendee, it is probable that attorneys’ fees should not be allowed, but costs and other necessary expenses should be.
The plaintiff below insisted in that court — and he presents the same views here — that Estell had forfeited all claim to the land; that he was insolvent and unable to pay; and that his allegations of outstanding titles were only pretexts to enable him to hold on to the land as long as possible. This view of the case is not sustained by the record.
There is no legitimate evidence that the contract was ever abandoned by Estell or rescinded by Chism. It is shown, indeed, that the notes were not paid at maturity; but it is also abundantly proven that the vendor indulged the non-payment for more than a year after the maturity of the last note.
He thus waived his right to declare the contract forfeited without giving notice of such intention to the vendee. Tom v. Wollhoefer, 61 Tex., 277; Scarborough v. Arrant, 25 Tex., 129; Secrest v. Jones, 21 Tex., 121.
Chism testifies that he never rescinded the contract, and that when he sold to Colo he distinctly notified him that he must take his chances of getting possession.
Cole was a near neighbor of Estell and knew all about the contract.
A short time before his purchase he was present when an agent of Chism called on Estell for a payment in cotton. Estell had cotton, but had been advised by his counsel that it would not be safe to turn it over unless the notes were indorsed or the agent had a power of attorney. Reese v. Medlock, 27 Tex., 120.
At that time Estell told the agent to have the notes indorsed, or get a power of attorney authorizing him to receive the cotton, and in the presence of Cole put United States revenue stamps on the notes which until then had been neglected.
Immediately afterwards Cole obtained a deed from Chism, got possession of the notes, and the first intimation Estell had of the supposed forfeiture was the offer- of the notes to him by Cole and a demand made for possession of the land.
Nor is there any truth in the allegation that he was insolvent. He had ample means, he had made large improvements on the land, and he relied o.n the leniency of Chism, who, he believed, would take no action against him without giving him notice.
The court permitted the plaintiff to testify to certain statements as made by Chism after his sale to Estell, that the latter had prom[703]*703ised to surrender the place to him. The defendant objected to the evidence and took a bill of exceptions.
[Opinion adopted December 12, 1884.]
The evidence was clearly inadmissible, and it should have been excluded.
The cases cited by appellee (Jones v. McCoy, 3 Tex., 349, and Garahy v. Bayley, 25 Tex. Sup., 295) are not in point.
The court erred also in permitting the plaintiff to prove that Estell had cut a large amount of timber upon the land.
The record does not show that the plaintiff had such an interest in the land as would authorize him to complain of the acts of Estell in the premises.
There are numerous errors in the charge of the court which we need not particularize, as they relate, in the main, to the subjects which we have already discussed.
Dor is it possible to notice the numerous assignments of error without extending this opinion beyond reasonable limits.
Upon the whole case, our opinion is that, as against Estell, the plaintiff acquired by his purchase no rights which could not have been asserted by Chism.
As the purchase money notes given by Estell for the land appear to have been deposited in the court below, he is entitled to have credited upon those notes —
1st. The reasonable and necessary expenses incurred by him (not to include attorneys’ fees) in the defense of the title.
2d. The sum of $500 paid by him upon the execution issued under the former judgment, with the costs of collection. And when money has thus been paid out the credits should be entered as of the dates of payment.
3d. The reasonable value of the rents of the land from time when the plaintiff took possession in 1874, including the. value of his (Estell’s) labor in planting and cultivating the land in the early part of that year.
We are also of opinion that the plaintiff should not recover for improvements placed by him upon the land.
A decree should be entered giving him a reasonable time to pay into court whatever additional sum may be due upon the notes, and upon its payment the title should be vested in him and a writ of possession should be awarded.
The judgment should be reversed and the cause remanded.
Reversed and remanded.