
    No. III.
    ALLCORN, ADMINISTRATOR, ETC., V. SWEENY.
    (See .)
    
      Appeal from Brazoria.
    
    
      
      .—Allcom, Administrator, etc., v. Sweeny, p. 494.
      Court has no power ⅛ enter an involuntary nonsuit. Guest v. Guest, Dal., 394; Sandoval v. Rosser, 86 T., 682, 685. Appeal does not lie from judgment of nonsuit by a justice of the peace on ground that plaintiff failed to appear. Morgan v. Johnson, 4 T., 117.
    
   MORRIS, Justice.

Allcorn, as administrator of one Capíes, deceased, sues Sweeny on a promissory note for $3460.50. Sweeny in his answer admits the execution of the note, but alleges that it was in' consideration of the sale of a tract of land by Capíes in his lifetime to him, Sweeny. That a bond was executed by Capíes to him conditioned to make a title to him in three months from the 10th day of March, A. D. 1837, under the penalty of $30,000 in case of failure therein. That Capíes fraudulently represented himself to be the owner of said land, when in fact one-eighth of said land was claimed by one John W. Cloud; that he frequently demanded title from said Capíes during his lifetime, and from his administrator, Allcorn, since his death, which they failed and neglected to make. That he is fearful he will be disquieted in the possession of all the land. He therefore pleads in reconvention and claims $30,000 penalty under the bond. The jury found a verdict for the defendant $14,000, for which amount judgment was rendered; on which judgment an appeal was taken to this court.

From the statement of facts we ascertain that a bond such as is described in the answer was executed by Capíes. That Capíes died previous to the expiration of the term of time mentioned in the bond. The value of the land was proven to be from three to five dollars per acre. It was also proven that in the fall, previous to the commencement of this suit, a company of men agreed to purchase 300 acres of this land from Sweeny for $6000, but that the contract was not consummated in consequence of Sweeny’s inability to make them a satisfactory title.

The land was to be purchased in order to erect a town, and witness thought if the town had been erected, the value of the land adjacent would have been much enhanced. A deed executed by the administrator for four-fifths of the land was tendered Sweeny at the term of the court when the cause was tried, and refused by Sweeny. A letter on file in the records of the court, in a cause pending between Allcorn, administrator of Capíes, as plaintiff, and John W. Cloud, from Cloud to Allcorn, was introduced to show that a demand had been made of the administrator. ■The judges charged the jury “that it was competent for the intestate to bind himself, his heirs, etc., in stipulated damages to make a title to the land, and that the death did not lessen the obligation and the necessity of complying with the terms of the obligation.” A motion for a new trial was made and withdrawn, in order to a more speedy determination of the case in this court. The counsel in argument concede that the bond on which the plea in reconvention is based was an ordinary penal bond, and that the amount therein specified was not claimed as stipulated or liquidated damages, but only such damages were sought by the plaintiff in reconvention and found by the jury as were actually sustained; the measure whereof would be the value of the land as disclosed by the testimony. Several questions have been raised as to the necessity of a demand, the time for such demand, and of whom it would be made ; which we do not deem it necessary to decide in this cause. We shall therefore proceed at once to that point which is decisive of the case in its present attitude. It appears that a contract of sale was made between Allcorn’s intestate (Capíes) and Sweeny, for certain lands, and the bond above mentioned given by Capíes to Sweeny. Capíes’ administrator sued Sweeny for the purchase money, and Sweeny recovered in damages for the failure of Capíes to perform the condition of his bond. Under the sale the possession of the land was delivered to Sweeny. The land was his, would de-Bcend to his heirs, and be devisable by his will. The powers and rights of the vendor, or those claiming under him, over and to the land, has passed forever to Sweeny. With Sweeny, however, under the condition of the bond, rested the election, in case of inability, failure or neglect on the part of the obligors in the bond, to make a good and sufficient title; either to enforce that title through the medium of the courts, or to rescind the contract and recover his damages. He elects to pursue the latter course, and refusing the deed for four-fifths of the land tendered him by the administrator, demands at the hands of a jury his entire damages. There is no plainer requisition of law, as well as reason and justice, than that where a party on such a contract as the bond under consideration seeks to exact a penalty for the nonperformance of a particular act, that all things must be restored, as nearly as may be, to their original position, before such penalty can be enforced. Has this been done by Sweeny, the plaintiff in reconvention ? He admits himself to be in possession of the land; he refuses a title to four-fifths thereof; he shows no eviction, or attempt at eviction by the vendor, his heirs, or administrators; he shows no outstanding title in any other person; he makes no tender of the premises, but holds on to his possession and still claims and obtains, at the hands of the jury, full damages to the value of the land proven, and even consequential damages as to a part. This verdict then, under these circumstances, is at once illegal, exorbitant and oppressive, and can never be permitted to stand unreversed. It is therefore ordered that the judgment of the court below be reversed and the cause remanded for a new trial.

Reversed and remanded.  