Wheeler, J.
Two grounds are relied on by the plaintiff in
•error, William Vardeman, for reversing the judgment: 1st. [15]*15That there was not sufficient evidence of the contents of the bond, or contract to convey, to entitle the plaintiffs to the verdict and decree thereon for specific performance : 2d. That the action was barred by the lapse of time, and the Court erred in overruling the plea of the Statute of limitations.
Upon the first point it is to be observed, there does not appear to have been any question made by the plaintiff in error, or any other controversy as to the terms of the bond. When called on to make title, he virtually admitted that he had contracted to do so ; and placed his refusal upon other and quite different grounds from those suggested in argument. The proof is clear and positive that the plaintiff in error sold to the defendants in error the land in question : that he was paid the price; and that he gave his bond for title to the land described in the petition. There was, and is, no question raised upon record, as to the particular terms and stipulations of the bond, or any limitation or reservation by its terms, as to the title to be conveyed ; there was no question of the fairness of the contract in every particular, the adequacy of the consideration, and the ability of the vendor to make title.
There can be no doubt or uncertainty as to what is to be understood by a bond for title. It is an instrument which evidences a contract for the sale of land ; and is substantially an agreement by the vendor to make to the vendee a title to the land purchased. Where the purchase money is paid, it vests in the purchaser the equitable title, under our law, sufficient to enable him to recover and defend the possession in any action wherein his right to the possession may be drawn in question ; it is superior to the legal title remaining in his vendor ; and a Court of equity will compel a specific performance, by decreeing a conveyance, by the vendor, of the legal title. (2 Story,Eq. Sec. 715 ; 4 Tex. R. 165. 11 Id. 237.)
By having given a bond for title, it is understood in this country, certainly in this State, that the vendor has contracted to make to the purchaser a good and valid legal title, with the [16]*16usual covenants of warranty, in the form prescribed by the Statute concerning conveyances. (Hart. Dig. p. 128 et seq-Art. 169, 170 ; Patterson v. Goodrich, 3 Tex. R. 331; Rawle on Covenants for Title, Chap. XI.) Mr. Rawle, in concluding his review of the cases upon the question, what covenants for title the purchaser has a right to expect, observes, “ There is “ indeed a guiding principle to the construction of all these “ cases. It is familiar law, that the general principles of the “ contract of sale, both in this country and England, recognise “ and enforce, while it is still executory, the right of the pur- “ chaser 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 the specific performance of “ a contract, where the title is bad, or even, as it has been said “ in modern times, where it is doubtful. Hence, when an in- " cumbrance exists, which it was not agreed upon should enter “ into and form a part of the consideration, the vendor must “ discharge it before he can call for a completion of the sale.
“ The law then, recognizing, prima facie, a necessary impli- “ cation of a good title in every contract for the sale of real “ estate, it follows that an agreement by which such a settled “ rule is to be disregarded, should be couched in the most ex- “ press terms, and as the law further recognizes the purchaser’s “ rights to covenants for the title, it is difficult to perceive how “ an agreement to convey ‘ by a sufficient warranty deed4 or “ words of similar import, can weaken the agreement, which “ the law implies from the mere relation of vendor and pur- “ chaser.” (Rawle on Cov. 566, 2d. edit.) Upon this principle, as well as usage, where there has been a sale of land and a bond for title, and there is nothing in its terms or stipulations by which a different intention is manifest, it is to be taken that a title, valid and effectual to secure the purchaser in the full, free, and uninterrupted possession and enjoyment of the land was intended. What is meant by a bond for title, is as [17]*17well understood in our practice respecting the sale and conveyance of lands, as what is meant by a warranty deed, or a good title, or any words of like import; and where, upon the sale of lands, it appears that a bond for title has been given, without more, it is understood that the vendor has contracted that the purchaser shall have a good title ; that is, a deed of conveyance, valid and effectual to. pass the title, in the ordinary and statutory form, containing the usual covenant of warranty. We are of opinion, therefore, that the evidence was sufficient to entitle the defendants in error to the verdict and decree rendered in their favor.
If the general charge of the Court was less favorable to the plaintiff in error than it might have been, the objection was removed by the instruction given at his instance. _ His counsel pursued the correct practice, by asking further instructions, where those given by the Court were thought not fully to embrace the law of the case ; he had the benefit of the instructions asked, and cannot complain of the ruling of the Court in that respect.
The Statute of limitations of four years was pleaded ; but that was no answer to the action. The Statute has no direct application to suits for specific performance. (4 Tex. R. 159.) And where lapse of time is relied on as a defence, it must be set up, as a defence, by plea or exceptions. (De Witt v. Miller, 9 Tex. R. 289.)
But if the lapse of time had been pleaded, it would not have been available as a defence under ■ the circumstances of this case. Where the purchase money has been paid, and a bond taken for title (it was said by this Court, in Mitchell v. Sheppard) ten years or more under some circumstances which may be imagined, as, for instance, where the vendee goes into possession under the contract, must elapse before specific relief would be denied. (13 Tex. R. 484 ; and see Holman v. Criswell, 15 Id. 394; Stramler v. Coe, Id. 211.) The defendants in error paid the purchase money, and shortly after the purchase [18]*18went into possession under the contract, and have so continued. •Theirs is the superior and better title ; and though a conveyance of the legal title was not necessary to the maintenance of their right, as against their vendor, yet, as suggested by their counsel in argument, while the legal title was retained by the vendor, it was a cloud over their title, which they had the right to have removed, and which it was important to them should be removed ; the more especially, as their'bond for title had been lost, and, it seems, had not been recorded. And we are of opinion, that neither the Statute of Limitations pleaded, nor the lapse of time was sufficient, under the circumstances, to preclude their right of action, for a specific performance of the contract to convey the legal title. (See, upon this point, Barlow v. Whitlock, 4 Monroe, 180, 194-200.) We see no error in the judgment, as to this plaintiff in error.
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Wheeler, J.
Two grounds are relied on by the plaintiff in
•error, William Vardeman, for reversing the judgment: 1st. [15]*15That there was not sufficient evidence of the contents of the bond, or contract to convey, to entitle the plaintiffs to the verdict and decree thereon for specific performance : 2d. That the action was barred by the lapse of time, and the Court erred in overruling the plea of the Statute of limitations.
Upon the first point it is to be observed, there does not appear to have been any question made by the plaintiff in error, or any other controversy as to the terms of the bond. When called on to make title, he virtually admitted that he had contracted to do so ; and placed his refusal upon other and quite different grounds from those suggested in argument. The proof is clear and positive that the plaintiff in error sold to the defendants in error the land in question : that he was paid the price; and that he gave his bond for title to the land described in the petition. There was, and is, no question raised upon record, as to the particular terms and stipulations of the bond, or any limitation or reservation by its terms, as to the title to be conveyed ; there was no question of the fairness of the contract in every particular, the adequacy of the consideration, and the ability of the vendor to make title.
There can be no doubt or uncertainty as to what is to be understood by a bond for title. It is an instrument which evidences a contract for the sale of land ; and is substantially an agreement by the vendor to make to the vendee a title to the land purchased. Where the purchase money is paid, it vests in the purchaser the equitable title, under our law, sufficient to enable him to recover and defend the possession in any action wherein his right to the possession may be drawn in question ; it is superior to the legal title remaining in his vendor ; and a Court of equity will compel a specific performance, by decreeing a conveyance, by the vendor, of the legal title. (2 Story,Eq. Sec. 715 ; 4 Tex. R. 165. 11 Id. 237.)
By having given a bond for title, it is understood in this country, certainly in this State, that the vendor has contracted to make to the purchaser a good and valid legal title, with the [16]*16usual covenants of warranty, in the form prescribed by the Statute concerning conveyances. (Hart. Dig. p. 128 et seq-Art. 169, 170 ; Patterson v. Goodrich, 3 Tex. R. 331; Rawle on Covenants for Title, Chap. XI.) Mr. Rawle, in concluding his review of the cases upon the question, what covenants for title the purchaser has a right to expect, observes, “ There is “ indeed a guiding principle to the construction of all these “ cases. It is familiar law, that the general principles of the “ contract of sale, both in this country and England, recognise “ and enforce, while it is still executory, the right of the pur- “ chaser 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 the specific performance of “ a contract, where the title is bad, or even, as it has been said “ in modern times, where it is doubtful. Hence, when an in- " cumbrance exists, which it was not agreed upon should enter “ into and form a part of the consideration, the vendor must “ discharge it before he can call for a completion of the sale.
“ The law then, recognizing, prima facie, a necessary impli- “ cation of a good title in every contract for the sale of real “ estate, it follows that an agreement by which such a settled “ rule is to be disregarded, should be couched in the most ex- “ press terms, and as the law further recognizes the purchaser’s “ rights to covenants for the title, it is difficult to perceive how “ an agreement to convey ‘ by a sufficient warranty deed4 or “ words of similar import, can weaken the agreement, which “ the law implies from the mere relation of vendor and pur- “ chaser.” (Rawle on Cov. 566, 2d. edit.) Upon this principle, as well as usage, where there has been a sale of land and a bond for title, and there is nothing in its terms or stipulations by which a different intention is manifest, it is to be taken that a title, valid and effectual to secure the purchaser in the full, free, and uninterrupted possession and enjoyment of the land was intended. What is meant by a bond for title, is as [17]*17well understood in our practice respecting the sale and conveyance of lands, as what is meant by a warranty deed, or a good title, or any words of like import; and where, upon the sale of lands, it appears that a bond for title has been given, without more, it is understood that the vendor has contracted that the purchaser shall have a good title ; that is, a deed of conveyance, valid and effectual to. pass the title, in the ordinary and statutory form, containing the usual covenant of warranty. We are of opinion, therefore, that the evidence was sufficient to entitle the defendants in error to the verdict and decree rendered in their favor.
If the general charge of the Court was less favorable to the plaintiff in error than it might have been, the objection was removed by the instruction given at his instance. _ His counsel pursued the correct practice, by asking further instructions, where those given by the Court were thought not fully to embrace the law of the case ; he had the benefit of the instructions asked, and cannot complain of the ruling of the Court in that respect.
The Statute of limitations of four years was pleaded ; but that was no answer to the action. The Statute has no direct application to suits for specific performance. (4 Tex. R. 159.) And where lapse of time is relied on as a defence, it must be set up, as a defence, by plea or exceptions. (De Witt v. Miller, 9 Tex. R. 289.)
But if the lapse of time had been pleaded, it would not have been available as a defence under ■ the circumstances of this case. Where the purchase money has been paid, and a bond taken for title (it was said by this Court, in Mitchell v. Sheppard) ten years or more under some circumstances which may be imagined, as, for instance, where the vendee goes into possession under the contract, must elapse before specific relief would be denied. (13 Tex. R. 484 ; and see Holman v. Criswell, 15 Id. 394; Stramler v. Coe, Id. 211.) The defendants in error paid the purchase money, and shortly after the purchase [18]*18went into possession under the contract, and have so continued. •Theirs is the superior and better title ; and though a conveyance of the legal title was not necessary to the maintenance of their right, as against their vendor, yet, as suggested by their counsel in argument, while the legal title was retained by the vendor, it was a cloud over their title, which they had the right to have removed, and which it was important to them should be removed ; the more especially, as their'bond for title had been lost, and, it seems, had not been recorded. And we are of opinion, that neither the Statute of Limitations pleaded, nor the lapse of time was sufficient, under the circumstances, to preclude their right of action, for a specific performance of the contract to convey the legal title. (See, upon this point, Barlow v. Whitlock, 4 Monroe, 180, 194-200.) We see no error in the judgment, as to this plaintiff in error.
The other plaintiff in error assigns as error, the opinion and charge of the Court upon the construction of the clause of the will, under which she claims, that the negroes bequeathed to .her, and which were given in exchange for the land in question, remained her separate property after her intermarriage with her present husband, to the exclusion of his marital rights.
It is undoubtedly true, that all the parts and provisions of the will are to be looked to, to ascertain the intention of the testatrix. And it is also true, that the will sufficiently manifests the intention to exclude the marital rights of the then husband of the plaintiff, from whom, it is said, she was separated. But it is not perceived that there is anything to warrant the conclusion, that it was the intention of the testatrix to create a separate estate in the wife, to the exclusion of the marital rights of any future husband. On the contrary, it seems clear that the intervention of trustees, and the direction given to the bequest, in case of the death of the beneficiary without issue, was intended for the sole purpose of excluding the marital rights and power of control, disposition or incumbrance of the [19]*19property, by her then husband, Butler ; for, in the event of the extinction of his marital rights, by death or divorce, it is declared that the property “is to be no longer the property of the said trustees, but to vest absolutely and entirely in the said Ailcy Dixon.” It would be difficult to employ language better or more certainly to express concisely the intention to vest in her the absolute, unqualified, and unlimited right and power of disposition over the property, in whatever manner she might see proper to use or dispose of it.
There is no doubt that if the bequest had been expressed in words indicative of an intention to create in the plaintiff a separate estate in the property for her exclusive use; or if such intention could be deduced from the will, a Court of Equity would give effect to that intention; and would protect her rights, against the disposition of her property by her present husband. But it is held, the intention to create such estate for her separate and exclusive use, must clearly appear, beyond a reasonable doubt, in order to authorize a Court of Equity to act upon it, to the exclusion of the husband’s ordinary, legal and marital rights over the property. (2 Story, Eq. Sec. 1381; Mimmo v. Davis, 7 Tex. R. 26.) Such is the doctrine of the Common Law and the law of the State of Alabama, by whose laws the effect of. the bequest, in this instance, is to be determined. (O’Neil v. League, 8 Ala. 345.) It does not appear that such was the intention of the testatrix in this case.
The event in contemplation of the testatrix having happened, the trust estate was determined, and the property became vested absolutely in the beneficiary. Having the possession and the absolute right of property, her power of disposition over it was absolute : and she might exercise it in whatever manner she saw proper, whether by marriage or otherwise. It was hers absolutely to dispose of, as any other property she might possess, at her own free will and pleasure. And upon her subsequent marriage with her present husband, by the law of Alabama, which at the time was the place of their domicil, the [20]*20property became Ms, subject to Ms sole right of disposition. The Court, therefore, did not err in the instruction given upon the construction of the will, and the law of the case ; and the judgment must be affirmed.
Judgment affirmed.