Justice, Moore Justice and W.D. Justice, all of Athens, and O'Fiel O'Fiel and David E. O'Fiel, all of Beaumont, for respondents. On the proposition that the Court of Civil Appeals' holding that the instrument was a deed, cite, Mondragan v. Mondragan, 239 S.W. 650; Lipscomb v. Fuqua, 121 S.W. 193; Gibbs v. Barkley, 242 S.W. 462. MR. JUDGE TAYLOR, of the Commission of Appeals, delivered the opinion for the Court.
The contract of October 27, 1906, between appellees and appellant being an executory contract for the sale of land, and appellees having defaulted in the payment provided for therein, appellant had the right to treat the contract as at an end and to deal with the land as his own, subject to appellees' right under the circumstances, to promptly make the payment in default in order to preserve their rights. Lipscomb v. Fuqua, 121 S.W. 193. Tillar's contract with Sidney P. Allen being wholly for the firm of Bush Tillar, did not interfere with or injure any rights appellees may have had in the land at the time of the making thereof.
That an instrument is not acknowledged in a manner that would authorize its recording is a circumstance tending to show the parties did not intend the instrument to be a completed conveyance. See Lipscomb v. Fuqua, 55 Tex. Civ. App. 535, 538, 121 S.W. 193, 194 (1909), aff'd, 131 S.W. 1061 (Tex. 1910). Without objection, the trial court admitted into evidence the December 2005 OrtizNiko deed which bears an acknowledgement signed and sealed by a Texas notary.
In the case of Estes v. Browning, 11 Tex. 237, 60 Am.Dec. 238, it is said: 'A party who has advanced money or done any act in part performance of the agreement, and then stops and refuses to proceed and fulfill his stipulation according to the contract, has never been suffered to recover for what has been thus advanced or done; and it would be an alarming doctrine that parties might violate their contract because they chose to do so, and make their own infraction the basis of an action for money had and received.' Also to same effect are the cases of Pell v. Chandos, [Tex.Civ.App.,] 27 S.W. 48; Banks v. McQuatters, [Tex.Civ.App.,] 57 S.W. 334; Lipscomb v. Fuqua, 55 Tex. Civ. App. 535, 121 S.W. 193."
It has been held, time and again, that a provision for liquidated damages in a contract for the sale and purchase of real estate is proper as being a transaction in which the damages for the breach thereof are uncertain and not easily estimated with accuracy. Magruder v. Poulton, Tex.Com.App., 257 S.W. 533, reversing Tes.Civ.App., 243 S.W. 512; Lipscomb v. Fuqua, 103 Tex. 585, 131 S.W. 1061, affirming, 55 Tex.Civ.App., 535, 121 S.W. 193; Reinhardt v. Borders, Tex.Civ.App., 184 S.W. 791; Atwood v. Fagan, 63 Tex.Civ.App. 659, 134 S.W. 765; Collier v. Betterton, 87 Tex. 440, 29 S.W. 467; Irvin v. Lambert, Tes.Civ.App., 70 S.W.2d 495; Pippin Bros. v. Thompson, Tex.Civ.App., 292 S.W. 618; Matthews v. Caldwell, Tex.Com.App., 258 S.W. 810, reversing Tex.Civ.App., 241 S.W. 798; Langever v. R. G. Smith & Co., Tex.Com.App., 278 S.W. 178, reversing R. G. Smith & Co. v. Langever, Tex.Civ.App., 261 S.W. 450. Under all the circumstances above pointed out and in view of the unambiguous language contained in the 'Earnest Receipt,' we construe the same as a stipulation for liquidated damages.
The vendor has the right to repossess himself of the property if the vendee defaults. Lipscomb v. Fuqua, 103 Tex. 585, 131 S.W. 1061; Id., 55 Tex. Civ. App. 535, 121 S.W. 193; Kennedy v. Embry, 72 Tex. 387, 10 S.W. 88; R. B. Spencer Co. v. May, Tex. Civ. App. 78 S.W.2d 665; Toler v. King, Tex. Civ. App. 11 S.W.2d 360; Gustafson v. American Land Co., Tex. Civ. App. 234 S.W. 244; Id., Tex.Com.App., 249 S.W. 189; Evans v. Ashe, 50 Tex. Civ. App. 54, 108 S.W. 398. The filing of a suit constitutes rescission.
The case has been often approved. Rindge v. Oliphint, 62 Tex. 682; Ransom v. Brown, 63 Tex. 188; Railway v. Titterington, 84 Tex. 218, 19 S.W. 472, 31 Am.St.Rep. 39; Lipscomb v. Fuqua, 55 Tex. Civ. App. 535, 121 S.W. 193; Buckley v. Runge (Civ.App.) 136 S.W. 533.
In the case of Estes v. Browning, 11 Tex. 237, 60 Am.Dec. 238, it is said: "A party who has advanced money or done any act in part performance of the agreement, and then stops and refuses to proceed and fulfill his stipulations according to the contract, has never been suffered to recover for what has been thus advanced or done; and it would be an alarming doctrine that parties might violate their contract because they chose to do so, and make their own infraction the basis of an action for money had and received." Also to same effect are the cases of Pell v. Chandos, 27 S.W. 48; Banks v. McQuatters, 57 S.W. 334; Lipscomb v. Fuqua. 55 Tex. Civ. App. 535, 121 S.W. 193. Under such condition, if there was nothing to be done but the payment of the money, execute the notes in accordance with the terms of the contract, and the delivery of the deeds, then at least, in order for appellees to show that they had a cause of action, they should show that appellants refused to carry out the contract or make the deeds.