
    Whiteman v. Castlebury’s Heirs.
    Where a honrt wa* given to make title as soon a* patents should be obtained, and the patents were obtained in the spring of 1840 and suit not commenced on the bond until the tail of lhóD, the court said, It «eems” the pica of the statute of limitations should have been sustained, hut the decision was not rested on that ground; and part of the pureluwe-tmrney remaining unpaid, the court said fnvthor, “ w helh«*r the contract could h.ive at all been set up at tho time of the commencement of this suit by the tender of the m-in-v still remaining duo is extremely doubtful; at most, this would depend upon equitable oireuir\stan«*es satisfactorily accounting for tho great delay.”
    U is the settled doctrine that the vendee in an executory contract, if he be in default even as to part only of the purchase-money, cannot defend himself in the possession of the laud against the suit jf the vendor; much less can he recover tho land, enforce «pocilio p >r-forman<‘e. or recove'* damages or the penalty of the bond for title. He must purge his default before ho can succeed in his suit; whether ho will be permitted to purge Uis default will depend on substantial equities, showing a reasonable excuse for not complying with tho terms of the contract, (rióte 8Ü.)
    Error from Upshur. This was a suit on a Htlo bond. The bond was executed in 1838, and was conditioned, in effect, that the vendor, the deceased intestate, would make to the vendee, who is plaiutiffin error, just such a deed as lie got from the Government, and in case lie did not get a deed from the Government, lie was to pay hack flFteon hundred dollars, which he acknowledged to have received, or which was secured to lie received. The patents were obtained from the Government in the spring of 1846, and this suit was commenced in September, 1850. It appeared from the evidence that a note for $100 was, in 1S3S, given by tile plaiutiffin part payment of tho purchase-money. but this had never been discharged. There was evidence that (lie plaintiff liad placed some small notes in the hands of the deceased intestate, the proceeds of which were to be appropriated to the payment of the note of four hundred dollars, hut it was also proved that tho deceased, though exercising due diligence, was able to collect hut a small amount on said notes.
    Verdict and judgment for the defendants.
    &. G. Swan and W. B. Turner, for plaintiff in error.
    
      M. J. Hall, J. C. Everett, and H. D. Rogers, for defendants in error.
   Hemphill, Ch. J.

Various errors have been assigned as grounds for reversal.

I shall not consider these in detail.

The point was taken in the pleadings of the defendants that the suit was barred by the statute of limitations. " The plea, it seems, should have been sustained. If the statute commenced running only from the issue of the patent, yet more than four years had elapsed before the institution of suit, and tho bar had been completed ; hut upon other grounds there is no doubt that the judgment must be sustained.

There had been default in the payment of the purchase-money, and the contract hail been rendered null by the plaintiff’s own laches and refusal to perform his engagements. Whether the contract could have at all been set up at the time of the commencement of this suit, by the tender of the money still remaining due, is extremely doubtful; at most, this would depend upon equitable circumstances, satisfactorily accounting for the great delay, and which are not stated in the pleadings. But there was no offer to pay the whole or the balance remaining due on said note. In this state of facts, the coiu-t very properly charged tlie jury that if they believed from the testimony that the plaintiff Whiteman had refused to pay the note, and that the same was given for the land, and that he still refused to pay the same into court, and pleaded that the same was barred by the statute of limitations, they would find for the defendants. This charge was fully as favorable to the plaintiff, if not more so, than was authorized by law. But the succeeding charge was still more favorable to the plaintiff. Whether the propositions he in accordance with law or not, is not material. The error, if any, was in favor of the plaintiff. By that the jury was instructed that if they believed from the testimony that the plaintiff had not refused to pay said note, but thought he liad paid'it by placing notes in the hands of Castlebury, then the plaintiff would be entitled to recover the land or have specific performance or recover of the defendant the amount of money paid their ancestor, with interest from the date of the contract. These instructions take away all ground of complaint from the plaintiff. The rule and principle of law on the question presented in this case, wore discussed in tiie case of Estes v. Browning, 3 vol. Texas Reports. It will bo seen that it is the settled doctrine that the'vendee, if he be in default, cannot defend himself in the possession of the land against the suit of the vendor; much less can he recover the land, enforce specific performance, or recover damages or the penalty of tile bond.

Note 86. — Dunlap v. Wright, 11 T., 697; Robertson t>. Paul, 16 T., 472; Seerest v. Jones, 21 T., 121; Baker v. Rainey, 27 T., 62; Monroe v. Buchanan, 27 T., 241.

lie must purge his default before he can succeed in ids suit.

Whether he will be permitted to purge his default will depend on substantial equities showing a reasonable excuse for not complying with the terms of the contract.

Judgment affirmed.  