I am compelled to dissent from the views of the majority in the decision of this case. I would probably not be inclined to persist in such dissent but for the fact that what I conceive to be a proper view of the law upon the questions involved will lead to a final decision of the controversy upon this appeal instead of sending the case back for another trial, something to be avoided, in my opinion, whenever it can be done consistently with the principles of law.
The opinion of the majority contains a sufficiently full statement of the issues and evidence for the purposes of this dissenting opinion.
As I understand the conclusions of the majority they rest upon the proposition that the contract of sale from Markham as agent of Burkitt, under the authority conferred upon him by Burkitt, did not authorize a recovery of the standing timber in an action therefor. The rule is stated that this contract must be construed as a contract for the sale of land, and to this I agree.
Resting its opinion upon the case of Groos v. Brewester (55 S.W. 592) and Cavin v. Hill (83 Tex. 74), the majority holds that under the facts stated in his amended petition, or if not so stated, at least shown to have been known to him, appellee Wynne had only a right of action for a specific performance, or for damages for failure or refusal to convey, and did not have a right to recover the timber. I have no criticism to make of the opinions referred to in so far as they announce the proposition that if appellee knew of the existence of facts, upon *Page 571 which he would have no right of action to recover the land, and was simply mistaken in the law applicable to such facts, the venue of this case in Walker County could not be sustained upon the mere ground that such mistake was an honest one made in good faith. As said by the court in Groos v. Brewster,supra, "While plaintiff might not be held to anticipate how an issue of fact may be resolved by a court or jury, he is held to a knowledge of the law applicable to the facts of his case." So, the majority holds that as Wynne was not mistaken as to the facts, but only as to the law, he can not be held to have acted in good faith in suing for the land, which he could do in Walker County, and the joinder of that cause of action would not support the venue as to the other two alternative causes of action, as to both of which Burkitt had a right to be sued in the county of his residence. If, upon the facts known to him, and upon his claim under the contract of sale, deposit of the purchase price in the bank to the credit of Burkitt — a mode of payment not objected to, but ratified and accepted by Burkitt — Wynne would have been entitled to recover the timber unless defeated by other facts, towit, the sale to Dean, Johnson and Baty, not known to him, Wynne would have been entitled to recover the land, I understand the majority would hold that the entire suit was properly brought in Walker County, where the timber lay, and the owner would not be defeated if the development of the facts with regard to the sale to Dean, Johnson and Baty, defeated his recovery of the timber. The effect of the holding of the majority is that if Burkitt had made no sale, and the other parties be eliminated from the case, Wynne could not have recovered in an action against Burkitt for the timber, but his only remedy would be a suit for specific performance or damages. This brings us to the essential point of difference between the writer and the majority of the court.
Burkitt did authorize Markham in writing to sell the timber. This is the language of his authorization. Under this written authority Markham did sell the timber to Wynne and executed to him the instrument copied in the opinion of the court, which, I will agree, was a contract of sale to be completed by the execution of a deed by Burkitt. It is true that the letters of Burkitt authorized a sale for one-half cash and the balance on time, but this departure from the terms of his authority by Markham was not objected to by Burkitt but was accepted and ratified by him, and it is shown that such terms were intended as a concession to the purchaser, and that Burkitt really preferred all cash. Thus, the sale was substantially in compliance with the authority. This contract of sale by his agent duly authorized, was Burkitt's contract of sale, as binding on him as though made and executed by him in person. The most that can be made out of it by Burkitt is that it was an executory contract to convey the timber (land), which, upon the payment of the purchase price, created an equitable title only, leaving the legal title in Burkitt until he could execute a conveyance. It is true that the purchase money was not paid nor tendered to Burkitt in strict form. It was, however, tendered to Markham and deposited in a bank subject to *Page 572 his order, and he appears to have fully accepted it as payment afterwards, and to be satisfied therewith if Dean, Johnson and Baty did not complete their purchase. This, I think, made of the whole transaction an executory contract to convey the land, with the purchase price paid; for, when the rights of a party depend upon payment, a tender made and refused is the equivalent of payment. Under all the authorities in this State such a contract vested in the purchaser an equitable title to land, which authorized a recovery of it in an action of trespass to try title. (Miller v. Alexander, 8 Tex. 36; Wright v. Thompson, 14 Tex. 561; Secrest v. Jones,21 Tex. 132; Scarborough v. Arrant, 25 Texas. 131; Downes v. Porter, 54 Tex. 61; Neyland v. Ward, 22 Texas Civ. App. 369[22 Tex. Civ. App. 369] (54 S.W. 604); Thompson v. Locke, 66 Tex. 383.)
It was said by the Supreme Court in Thompson v. Locke,supra:
"The action of trespass to try title serves the purpose of an action of ejectment in this State, but in it the question of title as well as the right to the possession is determined and as fully settled as could it be by a suit to quiet title: hence seldom, if ever, could a suit to quiet title, technically considered, be here necessary. The suits contemplated must be suits of broader purpose, embracing suits founded even on equitable titles, instituted to remove cloud from such title, and suits necessary, as occasion may require it, to enable the holder of the feeblest equity to remove from his way to legal title any unlawful hindrance having the appearance of better right."
If Burkitt had not sold the timber to Dean, Johnson and Baty, but refused to carry out the contract his agent had made, or if, at or prior to the time of the sale by him or his agent to Dean, Johnson and Baty, they had had full knowledge of the rights of Wynne under the contract with Markham, I think Wynne could have recovered the timber in this suit unless such right was defeated by the facts, not known to him, of the negotiations previous to his purchase between Howell, as the agent of Burkitt, and Dean, Johnson and Baty, which afterwards eventuated in the sale to them. The letters of Burkitt, which were Markham's authority to sell, conveyed to Wynne notice that Burkitt reserved the right to sell to the first person who was ready to close the deal for the purchase of the timber, but he did not know when he brought his suit that Dean, Johnson and Baty had closed their deal with Burkitt's agent before he bought, and were therefore entitled to the timber, or of the previous contract of sale with these parties. This was defensive matter which, when interposed by defendants, could not defeat the venue, whatever effect it might have in defeating Wynne's right to recover anything.
I conclude that the trial court did not err in overruling the plea of privilege of defendants and proceeding to try the case. If I am correct in this conclusion, this court should have disposed of the appeal upon the merits, instead of remanding to the District Court of Anderson County for trial.
As the opinion of the majority deals only with the question of venue, this dissenting opinion might properly stop here, but it may assist in *Page 573 a speedier disposition of the whole matter, in case the Supreme Court, upon a certificate of dissent or application for writ of error, should agree with this opinion on the issue decided, if it should be added that we all agree that upon the undisputed evidence appellee is not entitled to recover either timber or damages. The facts set out in the opinion of the court are established by the undisputed evidence, which shows that before the contract of sale by Markham to Hill for Wynne, Burkitt had become bound to sell the timber to Dean, Johnson and Baty, which contract was afterwards fully consummated, and that in the power of attorney or authority to sell given by Burkitt to Markham, he had clearly reserved this right. Hill having knowledge of this took the contract subject thereto.
Writ of error refused.