
    Bennett v. Hollis.
    See this ease for tho construction of a contract for tho salo of land made by letter, the purchase-money to he fixed by a third person.
    A being in debt to B by two notes of hand and an account assigned by 0 to B of which A had notice, sold two lots of ground to B to be settled for when the title to tho lots then in litigation should be clear; afterwards A sued B for tho purchase-money, alleging that the title had been cleared within two years last past; B pleaded the notes and account in reconvention : Held, That the account, being due more than two yeai*3, was barred by the statute of limitations.
    Where there isa sale of land which is in litigation, and the terms of sale are that the purchase-money shall be paid as soon as the title is clear, the vendee cannot claim an abatement of the amount on tho ground that he paid a certain sum to compromise the suit in which tho title was in controversy.
    Error from Galveston. Suit by the defendant in error against tile plaintiff in error for tile purchase-money of two lots in the city of Galveston. Petition filed June 14th, 1S51. The following letter from the defendant to the plaintiff was filed as a part of the petition :
    GalvestoN, March %4.th. 1849.
    T. E. Hollis, Liberty.
    
    DEAR Sir : I am just in receipt of your much esteemed favor under date of the 14th inst., and contents noted. I am willing- to take three lots, for which tlie enclosed is a deed, at a price; to be named by our mutual friend, E. I-I. Mer-riman, to be settled for when my title is clear to the property. If tins will suit yon, sign the deed before a notary and two witnesses, and send it clown with a letter directing Mr. Merriman to set the price upon them that lie considers as a fair valuation for them at this time. If tho judgment is confirmed at the Supreme Court, I account to you for the price he (Mr. M.) states; but if not, then, of course, the bargain is annulled, and you still remain in m\r debt. There is no telling what the result will be at the Supremo Court. I am under the impression that it was carelessness on their part that enabled you to get a judgment at all. But Frank will no doubt do bis best and we must wait the result.
    I will, on the receipt of your deed, send the furniture according to your direction. I would like to see you hero soon, if you can make it in your way to come down, that we may have everything arranged satisfactorily, that there may be no misunderstanding between us. Hoping to hear from you immediately on receipt of this, I remain,
    Yours, very respectfully,
    Jno. H. Bennett.
    The petition alleged that the plaintiff accepted tho proposition contained in the above letter, and executed the deed as requested and sent the same to the defendant; that the defendant’s title to the lots had, within two years last previous to the commencement of this suit, been made entirely olear and perfect in every respect, according to the terms of the aforesaid letter; and that said E. H. Merriman, in said letter mentioned, had fixed the price and value of said lots, at the date aforesaid, at the sum of two hundred dollars each; and that said lots were well worth that sum, &c.
    The defendant answered December 25th, 1851, (1) by a general demurrer; (2) for special causes, that the petition.contained no averment that the plaintiff had-assented to refer the case to Mr. Merriman. nor that said Merriman had set the price of said lots at the date of said letter; (3) by general denial; (4) by pleading two notes of hand of the plaintiff, payable to the defendant, one for $54.86, due January 1st, 1848, hearing ten per cent, per annum interest from that date until paid; the other for $91.67, due 30th March, 1848; (5) that defendant was on tho 2d day of August, 184S, justly indebted to Win. A. Gold, on account, in the sum of $120, which said Gold for value assigned to the defendant, of which both then and since plaintiff had due notice; (0) and the said defendant further averred that on the-day of-, A. D. 18 — , said plaintiff, who declined to accept the imposition made by defendant in his letter, a cop3>- of which is annexed to petition, and never gave his assent to the terms and conditions thereof, and who never performed the same, executed a deed to defendant for said lots, upon a totally different understanding- from that attempted to he set up in said petition, to wit, upon the terms contained in the following-letter of the plaintiff to defendant, which was sent with the deed :
    Liberty, April 2cl, 1849.
    Joi-iN H. Bennett, Esq.
    Dear Sir: I received your letter with the blank deed, and I will send it down by Dutch Dan, who starts to-morrow. As for calling- in uncle F. II. Merriinan, your word is enough, although Frank’s word is good; but you have always been just to mo. But, John, I want those two lots to pay you and Briggs & Yard ; and I want you to pay them, or keep the lots for to secure yourself and them, or pay them and yourself, and I am satisfied. The deed will be down by Dan, and you will please send the furniture to him and take his receipt in good order and send it to me.
    Tell Briggs & Yard, if you will pay them, that you will pay them. Write to me, on the receipt of this letter, what you will do. Nothing- more, but remain, Yours,
    T. F. Hollis.
    That the actual value of the lots at the time did not exceed $220, which was the valuation placed upon them by plaintiff, as appeared by the following memorandum'in plaintiff’s own handwriting, left by him with the defendant on the 30th of November, 1S47 : •
    Mr. J. II. Bennett: Mr. J. L. Darragh sent B. G. Merritt to propose to compromise with me about the three lots close to Presbyterian Church; if they will pay jrou two hundred and twenty dollars, make the trade.
    That (7) having so obtained the claim or alleged title of said plaintiff to said lots, and knowing- that the title of said lots was in controversy in a suit wherein said plaintiff was plaintiff v. • — —— defendant, he, the defendant, on the 4th of May, 1849, paid unto John L. Darragh the sum of $200 by way of compromise and final settlement of said suit, and thus perfected and cleared the title to said lots; that Darragh was the real party in interest in said suit, although he was not a party to the record. That plaintiff himself paid the account of Briggs & Yard, referred to in plaintiff’s letter, amounting to about $120; and that defendant settled and paid and received assignment of the account of said Gold, as aforesaid, the same being- about equal in amo nut to the debt due by said plaintiff to Briggs .& Yard. Wherefore the defendant pleaded the matters aforesaid in rcconvention, prayed an account and for judgment for any balance found due the defendant.
    The court overruled tlie demurrer of the defendant, and sustained exceptions of the plaintiff to defenses (o) and (7) in defendant’s answer, ovorruling-exceptions as to the residue.
    The plaintiff gave in evidence the letter of the defendant referred to in the petition ; proved by F. H. Merriman, same referred to in letter annexed to the petition, the lots to have been worth $200 each at that time; that the suit which had been pending between Hollis and Jones, in which the title to said lots was involved, was gained by Hollis, below, and was at the December Term of the Supreme Court, A. D., 1849, disposed of by a dismissal of (he appeal upon suggestion of settlement. It was agreed that Hollis had had nothing to do with the. compromise. The execution and delivery of the deed on the 2d April, 1S49, was agreed to.
    The defendant introduced in evidence the notes, memorandum, and letter annexed to his answer; proved the lots to have been worth, at the time, from $12» to $100 each.
    Phiintiff then proved that Hollis, just after April 2d, 1849, wrote to Briggs & Yard that Bennett would pay them on account of the lots in the petition mentioned the amount of his account, which was about $150; that Briggs called on Bennett, who declined to pay it, because he said he had heard that the cause had been reversed in the Supreme Court.
    There was a bill of exceptions as follows :
    Be it remembered, &c., the court ex mero motil charged the jury that the letter annexed to defendant’s answer, when coupled with the execution of the deed and delivery of it, was in legal effect an acceptance of the proposition contained in
    the letter annexed to plaintiff’s petition; to which the defendant excepted.
    C. W. Buckley,
    
      Judge 7th Jud. Dist.
    
    
      ]ST. D. Fenton, for plaintiff in error. In behalf of the plaintiff in error it is contended:
    First. The court erred in ruling out the account purchased of Gold. That it was assignable. (Tide Hart. Dig., art. 012; Story’s Eq. Ju., sec. 1047,105G-7; 2 Bead. Ca. in Eq., 205, 877.) Properly pleader! in reconvention. (Walcott v. Hendrick, in MS.)
    Secondly. That the court erred in not allowing the $200 paid Darragh to clear the title. (JSTewland on Con., 227; Story’s Eq. Ju., sec. 790 a and d, and note 3, 1237, n. 4.)
    Thirdly. That the court erred in making a contract for the parties. (Hart. Dig., art. 783.)
    Fourthly. Admitting the right of the court to decide the question of acceptance or non-acceptance, the construction made of Hollis’s letter was wrong, although accompanied by a deed.
    
      Alexander fy Atchison, also for plaintiff in error.
    
      II. JSr. %• M. M. Potter, for defendant in error.
   Lipscojib, J.

We will not discuss the errors assigned in the order in which they were made. The defendant in the court below filed a demurrer to the

plaintiff’s petition,-and assigned special exceptions to support the same. It was overruled by the court, and we believe that in so doing the court below did not err. The exceptions taken are not supported by a reference to the petition, and the supposed defects in it do not exist.

The plaintiff's exceptions to the answer of the defendant were properly sustained, because they refer to parts of the defendant’s answer that contained no defense to the action.

There is no error in the construction given by the court ex mero motu to the letter of the defendant containing the proposition to purchase the- lots. And it is clear that it was accepted by the plaintiff. This is evidenced by the deed being forwarded to the defendant according to the terms of the proposition made by him ; and the letter of the plaintiff did not modify the terms; and the defendant did not act upon the terms of that letter; lie did not pay the plaintiff’s debt to Briggs & Yard. Whenever written evidence is offered to the jury, it is the province of the judge to charge the jury as to (.lie legal effect of such evidence, whether he is asked to do so or not. The account of Gold against the plaintiff", alleged by tiie defendant to be assigned to him and pleaded in reconvention, was properly ruled out, because the plea showed that it was barred by the statute of limitations. If this had not been the case, although it was not assignable at law, yet the assignment would have been sustained upon principles of equity, and could have" been set up in reconvention. But the statute of limitations is as valid in equity as it is at law. The objection to receiving the other claim of two hundred dollars in reconvention is clearly sustainable. The defendant by his plea shows that it was paid by him to compromise a difficulty in the title to file lots sold to him by the plaintiff, and lie does not show any authority from the plaintiff to pay one cent for the compromise, nor is there any evidence of his having sanctioned such payment. Under such circumstances it was clearly a voluntary and an unauthorized, payment by the defendant, for which lie. could have no claim against the plaintiff. We can perceive no error in the judgment, and it is affirmed.

Note»- — Tho written argument of the counsel for the appellant in support of his application for a rt*hearing in this caso has been considered. We believe that the material part of it is based upon a mistaken hypothesis: “That the lots conveyed by the appellee wore to paya debt duo to tho appellant from appellee. and further to pay the amount of appellee’s indebtedness to Messrs. Briggs & Yard.” This was the proposition of the appellee as preferable to appellant’s proposition that he would take tho lots at the valuation of Mr. Merri-man. The appellee did not reject appellant’s proposition, but only expressed a preference. That this was not accepted by appellant is manifest from his receiving the deed from the appolloo and declining to pay Briggs & Yard, and his failure to do so was an election to hold onto his own proposition that the lots should be valued. We therefore adhere to tho opinion already expressed in affirming the judgment.

Lipscomb.

Judgment affirmed.  