Wilson v. Simpson

Citations

• 68 Tex. 306
• 4 S.W. 839
• 1887 Tex. LEXIS 687

Syllabus

<p>1. Equity—Contract.—A bond was given in 1837 in the sum of five thousand dollars, conditioned that the obligor should make to the obligee a title to two-thirds of a league and labor of land, “the remaining portion’’ of the head right to which he believed himself entitled, but to which no certificate or evidence of right had then issued. In 1888 a certificate issued to the obligor for one league and labor of land as the head of a family. It was located for the obligor in this bond, and the patent issued in his name in 1852. In a suit brought by the heirs of the obligee in 1885, against parties in possession as purchasers from the heirs of the obligor, held:</p> <p>(1) In order to entitle the heirs of the obligee to recover the land, they should establish, 1, a consideration; 2, a trust in the certificate, and, 3, through this, a trust in the land.</p> <p>(2) A proceeding to enforce specific performance of the executory contract evidenced by the bond, not having been begun in proper time, it was barred as a stale demand.</p> <p>(3) In the absence of evidence that the certificate was located for the obligee or his heirs, a two-thirds interest in the land would be the utmost they could have recovered under any circumstances.</p> <p>2. Bill of Costs—Execution.—Article 1420, Revised Statutes, applies only to pending suits up to the adjournment of a term of court in which no final judgment has been rendered. Article 1420b gives a remedy for the collection of costs incurred before final judgment, in case a demand for their payment has not been complied with, but no remedy is given by either article for costs incurred after the close of the term at which final judgment is rendered. A bill of costs incurred after final judgment, and the end of the term, and made by reason of suing out a writ of error, does not have the force and effect of an execution, and any sale made thereunder, as under execution, is void.</p> <p>3. Case Distinguished.—This case distinguished from Gain