Hemphill, Ch. J.
This is a suit, by James D. Estes against Wm. A..Browning, to recover rent for the use and occupation of a tract of land. Asa M. Lewis prayed to be made a party defendant; and he, with Browning, answers that they took possession of the land, as administrator of U. P. Browning, deceased. They then made various allegations, relative to the acts of the plaintiff and of the deceased, in and about the purchase of the said land from the plaintiff; and the plaintiff avers several matters by way of replecation to these allegations.
But the history of this transaction can be ascertained more satisfactorily from the report of the former suit between these parties, in 3 Tex. R. 462, than from the allegations of the contestants. From this, it appears, that in 1839, the plaintiff sold this land to the deceased ; took his two notes for the purchase money; and gave bond for title, to be made on payment of the notes. Browning made various payments on the notes, and remained in possession until his death in 1845. The bond was returned as a part of the estate of the deceased.
[243]*243The administrator having refused to allow the balance due on said notes, suit was brought for its recovery. The administrators pleaded the statute of limitations and the plaintiff dismissed his suit.
The plaintiff had also, in the meantime, brought his action of trespass to try title; and he recovered judgment for the land.
This is an action for the rent of this identical land; but by the pleas in reconvention, the controversy has turned principally on the question whether the defendants, as administrators, are entitled, under the circumstances, to recover back from the plaintiff, the partial payments which the deceased, in his lifetime, had made, of the purchase money.
It is admitted by the appellees, in their ingenious and able argument, that as a general rule, a vendee who, after having paid part of the purchase money, refuses to go on with the contract, forfeits the amount already paid, and the vendor may bring ejectment and recover the land agreed to be conveyed. That the law is correctly stated in this admission of appellees, cannot be questioned.
This doctrine is strongly—perhaps too strongly—laid down in Ketchum v. Evertson, 13 Johns. B. 365. It is stated there, as a general rule, that a party who has advanced money or done an act in part performance of an agreement, and then stops, and refuses to proceed to the conclusion of the agreement, the other party being willing to proceed and fulfil his stipulation according to the contract, has never been suffered to recover for what has been thus advanced or done; and that it would be an alarming doctrine, that parties might violate their contracts because they choose to do so, and make their own infractions the basis of an action for money had and received. In the case above cited, the vendee had paid part of the purchase money, and refusing to complete the contract, had brought his action for the recovery of the payment already made. The vendor had also subsequently sold the land to another person; but it was held bv the Court, that that did not alter the case. [244]*244The vendee had renounced the contract and refused to fulfil his stipulations; and the vendor was not bound to keep the land; nor did his sale to a third person subject him to an action by the vendee.
The principle of this case was again asserted in Ellis v. Hoskins, 14 Johns. R. 364; and in Hudson v. Swift, 20 Id. 26, it was held that to entitle the purchaser to recover back the deposit of a part of the consideration money, he must put the vendor in default, by tendering the money and demanding a conveyance.
But, although this is the well established doctrine, and it is so admitted by the defendants, yet it is urged that the rule has no application under the circumstances of this case; that the defendants were administrators, and, as such, were compelled to reject the demand for the balance of the notes, when presented, and to plead the statute of limitations to the suit for its recovery; and that had they allowed these notes as legal demands against the estate, and had they not pleaded the statute, they would have incurred a personal liability to that amount, as for a devastavit.
That, as a general rule, administrators must avail themselves of the statute, where the demand is barred by limitation, is admitted. It has been recognized and adopted by this Court; and administrators would, if they transcended the rule, subject themselves to personal liability. But this rule, as most other general principles, has its exceptions. It is based on sound policy. Administrators, generally, cannot know, with certainty, whether a demand against the deceased has been paid or not. This is especially the case, where the demand has become stale or obnoxious to the laws of limitation, from the lapse of time. As a matter of policy, then, and as one very beneficial to estates, administrators are required to set up the statute, in cases to which it applies. But this rule has no force in cases where its application would be detrimental, perhaps ruinous to the estate. It is a general principle, that where the reason of a rule ceases, the rule itself should cease: [245]*245and certainly, the rule is inapplicable, in cases where the plea of the statute, although it might defeat the recovery of all or a portion of the purchase money of a tract of land, as against the deceased vendee, would also have the disastrous effect of defeating the vendee’s rights or title to the land. No sound administration of the law would expose estates to so much hazard, for the mere purpose of enforcing a general principle which was designed, and generally has the effect of being to the benefit of the estates.
There are other general principles, of as much or more cogency, in reference to sales of land, than the rule requiring administrators to plead the statute of limitations; and one is, that the vendee, where the vendor is not in default, cannot obtain title without the payment of the purchase money, nor can he recover partial payments which he may have made, if he refuse to complete the contract.
The wisdom and policy of this rule are too manifest, to require the adduction of any reasons in its support. It is commended by every consideration of justice, honesty and fair dealing, between man and man. Its effect is to declare that no man shall claim title to the land of another, without payment of the price agreed upon ; nor shall he who refuses performance, make his own default the ground of rescission, nor be thereby entitled to compensation for part performance, or for recovery of such portion of the purchase money as he had already advanced. The fact that one of the parties dies, before the completion of the contract, can have no effect upon their relative rights. It is admitted that the vendee had no other alternative, than to pay the whole of the purchase money or lose the land and the payments he had made. His death cannot impair the rights of the vendor, or vest in his estate, rights which he did not himself possess. The act of Divine Providence, by which one is removed, is not, in contemplation of law, a disssolution of the contract. The deceased lives in his representatives. They have his rights and no other; and though they have special rules for their [246]
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Hemphill, Ch. J.
This is a suit, by James D. Estes against Wm. A..Browning, to recover rent for the use and occupation of a tract of land. Asa M. Lewis prayed to be made a party defendant; and he, with Browning, answers that they took possession of the land, as administrator of U. P. Browning, deceased. They then made various allegations, relative to the acts of the plaintiff and of the deceased, in and about the purchase of the said land from the plaintiff; and the plaintiff avers several matters by way of replecation to these allegations.
But the history of this transaction can be ascertained more satisfactorily from the report of the former suit between these parties, in 3 Tex. R. 462, than from the allegations of the contestants. From this, it appears, that in 1839, the plaintiff sold this land to the deceased ; took his two notes for the purchase money; and gave bond for title, to be made on payment of the notes. Browning made various payments on the notes, and remained in possession until his death in 1845. The bond was returned as a part of the estate of the deceased.
[243]*243The administrator having refused to allow the balance due on said notes, suit was brought for its recovery. The administrators pleaded the statute of limitations and the plaintiff dismissed his suit.
The plaintiff had also, in the meantime, brought his action of trespass to try title; and he recovered judgment for the land.
This is an action for the rent of this identical land; but by the pleas in reconvention, the controversy has turned principally on the question whether the defendants, as administrators, are entitled, under the circumstances, to recover back from the plaintiff, the partial payments which the deceased, in his lifetime, had made, of the purchase money.
It is admitted by the appellees, in their ingenious and able argument, that as a general rule, a vendee who, after having paid part of the purchase money, refuses to go on with the contract, forfeits the amount already paid, and the vendor may bring ejectment and recover the land agreed to be conveyed. That the law is correctly stated in this admission of appellees, cannot be questioned.
This doctrine is strongly—perhaps too strongly—laid down in Ketchum v. Evertson, 13 Johns. B. 365. It is stated there, as a general rule, that a party who has advanced money or done an act in part performance of an agreement, and then stops, and refuses to proceed to the conclusion of the agreement, the other party being willing to proceed and fulfil his stipulation according to the contract, has never been suffered to recover for what has been thus advanced or done; and that it would be an alarming doctrine, that parties might violate their contracts because they choose to do so, and make their own infractions the basis of an action for money had and received. In the case above cited, the vendee had paid part of the purchase money, and refusing to complete the contract, had brought his action for the recovery of the payment already made. The vendor had also subsequently sold the land to another person; but it was held bv the Court, that that did not alter the case. [244]*244The vendee had renounced the contract and refused to fulfil his stipulations; and the vendor was not bound to keep the land; nor did his sale to a third person subject him to an action by the vendee.
The principle of this case was again asserted in Ellis v. Hoskins, 14 Johns. R. 364; and in Hudson v. Swift, 20 Id. 26, it was held that to entitle the purchaser to recover back the deposit of a part of the consideration money, he must put the vendor in default, by tendering the money and demanding a conveyance.
But, although this is the well established doctrine, and it is so admitted by the defendants, yet it is urged that the rule has no application under the circumstances of this case; that the defendants were administrators, and, as such, were compelled to reject the demand for the balance of the notes, when presented, and to plead the statute of limitations to the suit for its recovery; and that had they allowed these notes as legal demands against the estate, and had they not pleaded the statute, they would have incurred a personal liability to that amount, as for a devastavit.
That, as a general rule, administrators must avail themselves of the statute, where the demand is barred by limitation, is admitted. It has been recognized and adopted by this Court; and administrators would, if they transcended the rule, subject themselves to personal liability. But this rule, as most other general principles, has its exceptions. It is based on sound policy. Administrators, generally, cannot know, with certainty, whether a demand against the deceased has been paid or not. This is especially the case, where the demand has become stale or obnoxious to the laws of limitation, from the lapse of time. As a matter of policy, then, and as one very beneficial to estates, administrators are required to set up the statute, in cases to which it applies. But this rule has no force in cases where its application would be detrimental, perhaps ruinous to the estate. It is a general principle, that where the reason of a rule ceases, the rule itself should cease: [245]*245and certainly, the rule is inapplicable, in cases where the plea of the statute, although it might defeat the recovery of all or a portion of the purchase money of a tract of land, as against the deceased vendee, would also have the disastrous effect of defeating the vendee’s rights or title to the land. No sound administration of the law would expose estates to so much hazard, for the mere purpose of enforcing a general principle which was designed, and generally has the effect of being to the benefit of the estates.
There are other general principles, of as much or more cogency, in reference to sales of land, than the rule requiring administrators to plead the statute of limitations; and one is, that the vendee, where the vendor is not in default, cannot obtain title without the payment of the purchase money, nor can he recover partial payments which he may have made, if he refuse to complete the contract.
The wisdom and policy of this rule are too manifest, to require the adduction of any reasons in its support. It is commended by every consideration of justice, honesty and fair dealing, between man and man. Its effect is to declare that no man shall claim title to the land of another, without payment of the price agreed upon ; nor shall he who refuses performance, make his own default the ground of rescission, nor be thereby entitled to compensation for part performance, or for recovery of such portion of the purchase money as he had already advanced. The fact that one of the parties dies, before the completion of the contract, can have no effect upon their relative rights. It is admitted that the vendee had no other alternative, than to pay the whole of the purchase money or lose the land and the payments he had made. His death cannot impair the rights of the vendor, or vest in his estate, rights which he did not himself possess. The act of Divine Providence, by which one is removed, is not, in contemplation of law, a disssolution of the contract. The deceased lives in his representatives. They have his rights and no other; and though they have special rules for their [246]*246guidance, that their administration may be beneficial to creditors, heirs, legatees, &c., yet they are not to be so applied, as to work mischief, and under the guise of screening the estate from debt, expose it to the loss of property, greatly exceeding in value, perhaps, the demand from which it had been relieved.
The vendor, in an executory contract, has superior right to the land, until the purchase money is paid. This right is not affected by either the default of the vendee or his death. It can be forfeited by the vendor’s own default. If he refuse compliance with the stipulations, they may be enforced or the vendee may rescind the contract and claim the restoration of the purchase money advanced. But neither the default of the vendee, nor that of his representative, can be the basis of such rights.
It cannot be converted into an instrument by which the land may be retained, or the purchase money paid may be recovered.
The judgment, therefore, for the recovery of such payments, is erroneous and must be reversed.
In one of the instructions, the jury is charged, in effect, that the plaintiff must show some contract between himself and Browning, otherwise he cannot recover rent in this form of action. This we apprehend to be erroneous. We have no forms of action; and if, upon the facts stated, the plaintiff be entitled to recover, he must have judgment. Even if Browning were a trespasser, yet damages for the trespass may be waived and the value alone of the use and occupation demanded.
It is to be regretted that the defendants did not, in the original suit, proffer payment of the balance due, and demand title of the plaintiff. This is the only relief to which they are entitled, and the only condition upon which they can be extricated from the embarrassments occasioned by their own default.
And it is further to be regretted, that they did not, in this [247]*247suit, by their plea in reconvention, avail themselves of the opportunity to tender performance and demand title. Their refusal and neglect are diminishing the chance of any relief, and if persisted in, must terminate in entire defeat.
The cause will be remanded, however, when the defendants will have an opportunity of amending their pleading and of seeking such aid as they can obtain.
Should the necessary amendments be made, the principal question will be whether the defendants are not by their default and laches debarred from any relief, and from claiming, under any circumstances, specific performance.
This subject is elaborately reviewed by that distinguished jurist, Chancellor Kent, in the case of Benedict v. Lynch, 1 Johns. Chan. R. 370; and the rule, as deduced from the authorities, is laid down by him, to be, in substance, that where a party who applies for specific performance, has omitted to execute his part of the contract, by the time appointed for that purpose, without being able to assign any sufficient justification or excuse for his delay, and when there is nothing in the acts or conduct of the other party that amounts to an acquiescence in the delay, the Court will not compel a specific per-' formance. That time is a circumstance of decisive importance, in these contracts, but it may be waived by the conduct of the other party ; that it is incumbent on the plaintiff, calling for a specific performance, to show that he has used due diligence, or if not, that his negligence arose from some just cause, or has been acquiesced in, &c. In the case cited, the vendee had entered on the premises—made extensive improvements, but neglected to make payment, according to the contracts. The vendor about two years after the first default, sold the land to another; and the vendee, having subsequently tendered the whole of the purchase money, filed his bill for relief and specific performance, which was refused and the bill dismissed with costs.
In the case of Hatch v. Cobb, 4 Johns. Chan. R. 559, it appeared that the plaintiff had made default in payment, ac[248]*248cording to the terms of the contract; that the defendant had accepted one payment after default, but that about six months thereafter, he had repeatedly called for payment, and gave notice that if the plaintiff did not pay, he would be obliged to assign his interest in the land ; no payment being made, he assigned over his interest to a third person ; and the plaintiff, with a knowledge of that fact, made a tender of the balance due on the contract, and filed his bill for performance, &c. This was refused, on the ground that the vendor had, by sale to another disabled himself before suit was brought, and that this was known to the plaintiff; but had the vendor not sold, it was intimated that the point would have deserved consideration, whether the vendee would have been entitled to assistance, when no accident, fraud or mistake had intervened to prevent the performance of the contract on his part, and when, after indulgence, he had been twice required to make payment and had omitted to do it.
These cases will suffice to show the grounds and the circumstances, under which Courts of equity will afford relief to vendees who have made default, but subsequently tender the whole of the purchase money or a full compliance with the obligations of the contract. They must present some equitable considerations in excuse for their negligence, or relief will not be granted.
In the case under consideration, the vendee had, in his lifetime, made but partial payments. But these having been accepted, the delay was acquiesced in, and the default consequently waived. The only question is, whether the acts of his representatives are such as to have precluded them from relief, provided they should ever seek the only aid which is attainable through the law. And we are of opinion that notwithstanding there has been great delay, yet, that under the circumstances, they are entitled to aid, under such conditions however, as will do justice to the other parties in this controversy. The duty of the administrators, in the premises, was not free from doubt. The action taken by them was, as they believed, [249]*249the only alternative in their choice. The circumstances were novel in their character; and the law applicable to them, had not been well defined. It appears now, that they misapprehended their duty; but the mistake and their consequent neglect are not such as should defeat their rights and deprive them altogether of relief.
The other party, in conseqüence of their default, has incurred considerable expense in the assertion of his rights. For these, he should, at least to some extent, be reimbursed. Most certainly the costs of the judicial proceedings, in which he has been involved, should be discharged by the defendants. How far his other expenses shall be allowed, can be decided when the question is directly presented.
It is ordered, adjudged and decreed, that the judgment be reversed and the cause remanded for a new trial.
.Reversed and remanded.