Hemphill, Ch. J.
There is but one question in this case, and that is whether the act of William Barton, the father, in completing the sale of the land to the defendant Primm, in 1839, was valid and binding, not only on himself, but on the heirs of his deceased wife. -The land was sold by Barton on the 18th December, 1835 ; he and his wife both joining in executing a bond of that date for title. The bond is in the usual form, reciting that on that day they had sold and given possession of the land for the consideration of six thousand dollars, to be paid, five hundred dollars in hand, two thousand dollars in Janury, 1837, and three thousand five hundred dollars in twelve months thereafter, covenanting on the receipt of the two thousand dollars, as aforesaid, to execute a good and sufficient title to the land. Stacy Barton, the wife of William, and the mother of the plaintiff, Wilford Barton, died in April, 1837, and on the 18th of April, 1839, William Barton, the surviving husband, conveyed by deed, full title to Primm, the defendant.
It will not be denied that if the whole consideration had been paid in the life-time of the wife, the deed, though made [222]*222after her death, would be binding, and could not be impeached by her heirs. (Stramler v. Coe, 15 Tex. R. 211.) Nor would it admit of contest, that if the consideration had been paid by installments at the time stipulated, the deed by the husband and surviving partner of the community could not be disturbed by the heirs of the wife. But in this case the defendant made default in the payment of the two thousand dollars, in January, 1837. The wife died in April, during that default, and the question is whether on the payment of the whole consideration, sixteen months after the last installment was due, the conveyance by the surviving husband is binding on not only his own interest, but on that claimed by the heirs of the wife by community right in the land.
The first inquiry which suggests itself, is as to the legal effect of the default of payment by the purchaser.. In law, the vendor, by this default, might have considered the contract at an end, and might have brought an action for possession, or lawfully sold the land to another. But what was the effect in equity ? The stipulations are such as to show that time was not of the essence of the contract. Nor is there any evidence that it was such, from the surrounding circumstances. Where there is no stipulation in effect that the contract shall become null and void on default made, and where there are no circumstances which would render it null on such default, Courts of Equity will look to the substance and not to the form of the contract, and as the substance is the sale of the land on the one side, and the purchase on the other, the contract will not be rendered void, nor will parties be denied relief, because there has been failure as to time in the exact performance of the conditions. (Roberts v. Berg, 17 Eng. Law and Chanc. 400.)
The doctrine on this subject is admirably expressed by Lord Redesdale in Lemon v. Napier, 2 Sch. and Lef. 684, viz : “ The “ Courts, in all cases of contracts for estates in lands, have “ been in the habit of relieving where the party from his own [223]*223“ neglect had suffered a lapse of time, and from that or other “ circumstance, could not maintain an action to recover dam- “ ages at law, and even where nothing exists to prevent his “ suing at law. So many things are necessary to enable him to “ recover at law, that the formalities alone render it very incon- “ venient and hazardous to proceed ; nor could, in many cases, “ the legal remedy be adequate to the demands of justice. “ Courts of Equity have therefore enforced contracts speci- “ fically, where no action for damages could be maintained; " for, at law, the party plaintiff must have strictly performed his " part, and the inconvenience of insisting upon that in all “ cases was sufficient to require the interference of Courts of “ Equity. They dispense with that which would make com- “ pliance with what the law requires oppressive, and in the “ various cases of such contracts they are in the constant habit “ of relieving the man who has acted fairly though negligently; “ thus, in the case of an estate sold by auction there is a con- “ dition to forfeit the deposit if the purchase be not completed “ within a certain time, yet the Court is in the constant habit “ of relieving against the lapse of time ; and so in case of “ mortgage ; and in many instances relief is given against “ mere lapse of time, where lapse of time is not essential to “the substance of the contract.” (Dart on Vendors, 208, 514 ; Story, Jur. Sec. 776.)
Judge Story in Treatise on Equity Jurisprudence, says that time is not generally deemed in equity to be of the essence of the contract, unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract. (Supra.)
The mere fact then that Primm had not made payment at the time stipulated, would not of itself have been any defence to a suit by him for specific performance ; nor is there any fact in the case which shows that in equity his default was such as to have barred him from relief. In the meagre statement of facts on which this cause was submitted to the Court, [224]*224it is stated as a circumstance of importance, that Barton was in possession of the land and cultivated a crop there during the year 1837, and that he moved off said laid in that year. But it is not stated that he left the land before 1837, or if he did, why he went back in 1837, and left again in the same year. True it is stated, that Barton delivered actual possession of the land to Primm in December, 1835. But there is no other fact in relation to Primm’s possession, except that he is now and has been in possession since the 18th April, 1839. Here is a hiatus in the possession from 1835 to 1839. No evidence that any one was in possession of the land, except that Barton was there during part of the year 1837. We know from public history, that the country on the Colorado was abandoned by the inhabitants in 1836. When did Primm return ? Was he ejected from the land by Barton, or was he in the country in 1837 ? Or were he and Barton both in possession ? These conjectures cannot be answered by any thing found in the statement of facts. Nor is the solution of them of much importance. The fact of possession by Barton in 1837, is a circumstance from which it might be, to some extent presumed, that he intended to reclaim the land ; and had it been shown that such was his object in taking possession, it would have been conclusive that at that time he did not intend to waive the default of the purchaser. But that would not have' defeated the rights of the latter. He might notwithstanding have been entitled, on proper showing, to specific performance.
The sum of the whole is, that the contract did not become void on default of payment by the purchaser. It might still have been enforced in equity, and consequently the land did not revert to the vendors, nor was the title of the vendee absolutely divested.
It was in this state of the facts and of the title, that Mrs. Barton departed this life ; her interest in the community descending to her heirs, but charged with its obligations. The [225]
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Hemphill, Ch. J.
There is but one question in this case, and that is whether the act of William Barton, the father, in completing the sale of the land to the defendant Primm, in 1839, was valid and binding, not only on himself, but on the heirs of his deceased wife. -The land was sold by Barton on the 18th December, 1835 ; he and his wife both joining in executing a bond of that date for title. The bond is in the usual form, reciting that on that day they had sold and given possession of the land for the consideration of six thousand dollars, to be paid, five hundred dollars in hand, two thousand dollars in Janury, 1837, and three thousand five hundred dollars in twelve months thereafter, covenanting on the receipt of the two thousand dollars, as aforesaid, to execute a good and sufficient title to the land. Stacy Barton, the wife of William, and the mother of the plaintiff, Wilford Barton, died in April, 1837, and on the 18th of April, 1839, William Barton, the surviving husband, conveyed by deed, full title to Primm, the defendant.
It will not be denied that if the whole consideration had been paid in the life-time of the wife, the deed, though made [222]*222after her death, would be binding, and could not be impeached by her heirs. (Stramler v. Coe, 15 Tex. R. 211.) Nor would it admit of contest, that if the consideration had been paid by installments at the time stipulated, the deed by the husband and surviving partner of the community could not be disturbed by the heirs of the wife. But in this case the defendant made default in the payment of the two thousand dollars, in January, 1837. The wife died in April, during that default, and the question is whether on the payment of the whole consideration, sixteen months after the last installment was due, the conveyance by the surviving husband is binding on not only his own interest, but on that claimed by the heirs of the wife by community right in the land.
The first inquiry which suggests itself, is as to the legal effect of the default of payment by the purchaser.. In law, the vendor, by this default, might have considered the contract at an end, and might have brought an action for possession, or lawfully sold the land to another. But what was the effect in equity ? The stipulations are such as to show that time was not of the essence of the contract. Nor is there any evidence that it was such, from the surrounding circumstances. Where there is no stipulation in effect that the contract shall become null and void on default made, and where there are no circumstances which would render it null on such default, Courts of Equity will look to the substance and not to the form of the contract, and as the substance is the sale of the land on the one side, and the purchase on the other, the contract will not be rendered void, nor will parties be denied relief, because there has been failure as to time in the exact performance of the conditions. (Roberts v. Berg, 17 Eng. Law and Chanc. 400.)
The doctrine on this subject is admirably expressed by Lord Redesdale in Lemon v. Napier, 2 Sch. and Lef. 684, viz : “ The “ Courts, in all cases of contracts for estates in lands, have “ been in the habit of relieving where the party from his own [223]*223“ neglect had suffered a lapse of time, and from that or other “ circumstance, could not maintain an action to recover dam- “ ages at law, and even where nothing exists to prevent his “ suing at law. So many things are necessary to enable him to “ recover at law, that the formalities alone render it very incon- “ venient and hazardous to proceed ; nor could, in many cases, “ the legal remedy be adequate to the demands of justice. “ Courts of Equity have therefore enforced contracts speci- “ fically, where no action for damages could be maintained; " for, at law, the party plaintiff must have strictly performed his " part, and the inconvenience of insisting upon that in all “ cases was sufficient to require the interference of Courts of “ Equity. They dispense with that which would make com- “ pliance with what the law requires oppressive, and in the “ various cases of such contracts they are in the constant habit “ of relieving the man who has acted fairly though negligently; “ thus, in the case of an estate sold by auction there is a con- “ dition to forfeit the deposit if the purchase be not completed “ within a certain time, yet the Court is in the constant habit “ of relieving against the lapse of time ; and so in case of “ mortgage ; and in many instances relief is given against “ mere lapse of time, where lapse of time is not essential to “the substance of the contract.” (Dart on Vendors, 208, 514 ; Story, Jur. Sec. 776.)
Judge Story in Treatise on Equity Jurisprudence, says that time is not generally deemed in equity to be of the essence of the contract, unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract. (Supra.)
The mere fact then that Primm had not made payment at the time stipulated, would not of itself have been any defence to a suit by him for specific performance ; nor is there any fact in the case which shows that in equity his default was such as to have barred him from relief. In the meagre statement of facts on which this cause was submitted to the Court, [224]*224it is stated as a circumstance of importance, that Barton was in possession of the land and cultivated a crop there during the year 1837, and that he moved off said laid in that year. But it is not stated that he left the land before 1837, or if he did, why he went back in 1837, and left again in the same year. True it is stated, that Barton delivered actual possession of the land to Primm in December, 1835. But there is no other fact in relation to Primm’s possession, except that he is now and has been in possession since the 18th April, 1839. Here is a hiatus in the possession from 1835 to 1839. No evidence that any one was in possession of the land, except that Barton was there during part of the year 1837. We know from public history, that the country on the Colorado was abandoned by the inhabitants in 1836. When did Primm return ? Was he ejected from the land by Barton, or was he in the country in 1837 ? Or were he and Barton both in possession ? These conjectures cannot be answered by any thing found in the statement of facts. Nor is the solution of them of much importance. The fact of possession by Barton in 1837, is a circumstance from which it might be, to some extent presumed, that he intended to reclaim the land ; and had it been shown that such was his object in taking possession, it would have been conclusive that at that time he did not intend to waive the default of the purchaser. But that would not have' defeated the rights of the latter. He might notwithstanding have been entitled, on proper showing, to specific performance.
The sum of the whole is, that the contract did not become void on default of payment by the purchaser. It might still have been enforced in equity, and consequently the land did not revert to the vendors, nor was the title of the vendee absolutely divested.
It was in this state of the facts and of the title, that Mrs. Barton departed this life ; her interest in the community descending to her heirs, but charged with its obligations. The [225]*225husband, the surviving partner, who, during the life of his wife, had full power to dispose of the property, and who after her death had the powers necessarily appurtenant to the survivor of this partnership, subsequently conveyed the land as he had agreed to do in the life-time of his wife ; and can her heir impeach this deed on any other ground than that the sale was from the beginning made with the fraudulent intent to deprive the wife of a portion of her share in the community ? The fact that the surviving husband completed the sale stipulated by his bond, is a presumption in favor of its validity, and if this were done voluntarily and without compulsion by him, it raises the further presumption that in his best judgment it was for his own and the interest of this, his minor heir, that the contract should be completed.
There-is no evidence as to the circumstances under which the payment by Primm on the one hand, and the conveyance by Barton on the other, were made ; whether Primm was sued by Barton for the purchase money, or Barton by Primm for the deed, or whether the transaction on the part of both was voluntary. But admitting that it was voluntary, that each having regard to the legal rights of the other, and to the advantages of the sale, agreed to perform their respective obligations, the voluntary deed of the father, under the circumstances, conveying lands which he, during the existence of the community, had agreed to sell, vests such title to the land as cannot be gainsaid by the heirs of the wife, unless it be shown by clear proof, that the sale was made and perfected to defraud the wife or her heirs.
There is not a scintilla of evidence that there was any such fraudulent intent on the part of the father, throughout the transaction. The wife having joined in the bond is proof that the sale was not made by fraud to injure her, and there cannot be a shadow of pretence under the facts in evidence, that there was any wrong intended against the plaintiff by his own father in honestly fulfilling his agreement. The maxim that “ fraud [226]*226cannot be presumed” applies with peculiar force to cases of this character, in which there is an attempt by a son to invalidate the deed of his father acting not only for himself but virtually for this his minor child, and whose interests, it must be presumed, would be guarded by him with all the solicitude, watchfulness and anxious care of fatherly affection.
Even if time had been of the essence of the contract, yet as the parties to contracts for the sale of land, can waive the default, as the contract does not become so absolutely null by the failure to perform, but that it can be made good by the subsequent agreement or acts of the parties proceeding with the sale or purchase as the case may be, and which are deemed equivalent to a waiver, (Dart, p. 212; 6 Beav. 124; 4 Y. & C. 503,) it is very questionable whether, under such contract, the heirs of the wife could impeach a deed made by "their own father as survivor of the marriage, unless there was evidence of. fraud to the injury of such heirs. If the acts were done fairly, in conformity with the original stipulations, and especially where there is no evidence of its being positively injurious, it is questionable whether such act should be held a new contract in such sense as not to be binding on the heirs of the deceased, But the decision of this point is waived, as not necessary to the disposition of this case. Time was not the essence of this contract. For aught that appears it may have been enforced or was enforceable in equity, and the plaintiff having received by inheritance from the mother a share in the community, but charged with its burthens, cannot impeach the deed of his father, the surviving partner, made by him in discharge of his engagement as head of the community, an engagement in which the wife herself joined ; and her act, if it have no other effect, is at least evidence that she was apprised of and sanctioned the contract.
The powers of the survivor of a conjugal partnership over the property of the community, and to enable him to make good Outstanding engagements, settle the claims for and against the [227]*227community estate, seem not to be well settled. In Jones v. Jones, 15 Tex. R. 148, we said that as survivor, he had competent authority to discharge the debts of the partnership, and that whether the discharge of debts, or any act he might lawfully do as survivor, be done in his own name, or in his name as survivor, was immaterial. The law would look to the substance and not to the form ; and we intimated in the same case, that if he disposed of the property of the community in discharge of its legitimate debts, such arrangement could not be disturbed. We have hitherto had no reason to be dissatisfied with these doctrines ; and believe that such powers are fairly within the scope of the authority, which on reason and principle, must legitimately appertain to the survivor, and especially when the survivor is that member of the partnership who during its existence, had the sole power of administration and sale, with no other restriction than against acts with fraudulent intent to injure the wife—he would not have power to make new engagements, so as to bind the former partnership—but certainly all acts done by the survivor in discharge of prior obligations, and in virtually (if not formally) winding* up and settling the affairs of the community, must be legitimate, and not subject to impeachment for the want of authority.
, These remarks refer to the power of a survivor prior to the grant of administration on the estate of the deceased partner. After such administration under the present laws, the estate must take the course prescribed under the act of 1848. (Art. 1211 Hart Dig.) Judgment reversed and cause dismissed.
Reversed and dismissed.