Milligan v. Ewing

Citations

• 64 Tex. 258

Syllabus

<p>1. Vendor’s lien — Rescission.— Ordinarily a vendor who has made an executory contract to convey land may rescind the contract if the vendee fails to pay the purchase money. This right does not exist in all cases, however, for if there are facts which make it inequitable for the vendor to exercise this right, a court of equity will not enforce it, but will leave the party to his action for the purchase money.</p> <p>2. Tender oe consideration — Equity. — A vendor conveyed a tract of land, the deed stating that the consideration was the cash payment of $250, the execution and delivery by the vendee of two negotiable notes for $207 each, due about three and four years respectively after date, and the assumption by the vendee of a debt of $836, due from the vendor to a third party. The vendor's lien was retained, and the vendor brought suit for the land. Held, 1st. That the notes should have been tendered for cancellation, or it should have been shown that they were not in the hands of innocent holders, and also that there should have been an offer to relieve the vendee from liability to the third party for the debt of $336; for it would be inequitable, as between the vendor and vendee, to withdraw the consideration which gave rise to that obligation, and still allow that obligation to the third party to remain in force. 2d. That a failure to make these tenders was fatal to plaintiff’s petition.</p>