G. W. Tom & Wife v. Wollhoefer

Citations

• 61 Tex. 277
• 1884 Tex. LEXIS 92

Syllabus

<p>1. Vendor and vendee.— One who contracts to purchase from a vendee of land before such vendee has completed his own purchase by the payment of purchase money, does so with full knowledge of the original vendor’s rights to rescind his contract of sale and recover the land, or to convey it to a third party. Such right of rescission must, however, be clearly and unequivocally exercised, in a proper manner, at a proper time, and under circumstances which entitle the vendor to declare the contract of sale rescinded.</p> <p>2. Same.— No act on the part of a purchaser, except such as under the contract itself produces a forfeiture of the title, can invalidate that title to the prejudice of parties to whom he has given a deed or mortgage, affecting the subject matter of the original sale.</p> <p>3. Same — Default — Mortgage — Equity. — A vendor of land held a purchase money note not due, the interest on which, payable annually, was due; he gave no notice of his desire to rescind the sale by reason of default in payment of interest; but canceled the debt unpaid and accepted a reconveyance, for which he paid an additional consideration. Prior to this the original vendee had incumbered the property, of which his vendor had notice, and after receiving the reconveyance the original vendor again sold the land, postponing the receipt of a part of the purchase money equal to the amount for which the land had been incumbered by the first vendee, with a reservation of the rights of the beneficiary in the incumbrance, if he liad any. In a proceeding in equity, begun by the original vendor, to which the second vendee was a nominal plaintiff, against the mortgagee, to remove cloud from title, and decree the land to the second vendee freed from the mortgage, it was shown that the money loaned by the mortgagee to the first purchaser was applied by him in making payments on the land and improvements before its reconveyance. Held:</p> <p>(1) The land was subject to the satisfaction of th