1. — Agency — Sale of Land — Commissions — Title.
An agent, who has found a purchaser for land under a contract with the owner for a commission, on its sale, by which the owner agrees to furnish an abstract and "clear title" to the purchaser, is entitled to his commissions where the purchaser refuses to carry out the trade because the owner can not show good title. (P. 284).
2. — Same — Binding Contract.
The land agent has earned his commissions where he produces a purchaser willing to complete the trade on the terms offered or one who makes a binding contract to do so; it is not necessary that both willingness and contract concur; and it is immaterial that the contract made by the owner with the proposed purchaser bound the latter in the alternative, to buy or forfeit a deposit of earnest money, if the latter refused to complete, not by availing himself of the alternative, but because being willing to complete, he was dissatisfied with the title offered. (Pp. 284, 285).
3. — Same — Clear Title.
To justify a refusal to comply with an agreement to purchase land to which the seller has undertaken to give clear title, it is not necessary that the title be bad; it is enough that it does not appear that it is good. (P. 285).
4. — Same — Defect — Execution Sale — Judgment — Service by Publication.
A sale under execution on a personal judgment obtained by citation by publication is insufficient to show clear title in the purchaser in the absence of proof that the defendant in judgment was a resident of the State. (P. 285).
5. — Same — Title by Limitation.
It is questioned whether a purchaser, who has contracted for a clear title, can be required to accept one dependent on proof of title in the seller by limitation, but, if so, such proof is here held insufficient. (P. 285).
MR. JUSTICE WILLIAMS delivered the opinion of the court.
The nature of this case and its facts are fully stated in the opinion of the Court of Civil Appeals, 118 S.W. 770.
In the writing evidencing the employment of defendant in error (hereafter called plaintiff) by plaintiffs in error (hereafter called defendants) to sell the described land, they agreed, among other things, that if he would sell the property they would furnish "an abstract of title up to date of sale and clear title to purchaser" and that plaintiff should receive for his services "whatever sum in excess of $12,000 he may sell the property for out of the first payment made by purchaser." The plaintiff entered into negotiations with James A. Baker as a result of which the latter decided to buy the land, if satisfied with the title, for the cash price of $13,500, and was able and willing to buy at that price. It is made plain that he would have bought but for the fact that an examination made in good faith on the evidences of title produced by defendants did not satisfy him of its soundness. So it appears that the sale negotiated by plaintiff was defeated solely by the failure of defendants to make good their stipulation to furnish a clear title to the purchaser. When these simple facts, established by the verdict of the jury, are disentangled from the contentions in which the case has been enveloped, there is no difficulty in seeing that the plaintiff had done all he was required by the contract to do towards the completion of the sale; in short, had rendered the service he was employed to render, and that the sale was defeated through the fault of the defendants. It ought to require no argument or authority to establish his right to the compensation, but the following establish the principle controlling: Holden v. Starks, 159 Mass. 503; Reed v. Light, 85 N.E. (Ind.), 9; Carter v. Simpson, 130 Ill. App. 328; Vaughan v. McCarthy, 59 Minn. 199; Buckingham v. Harris, 10 Colo. 459; Finnerty v. Fritz, 5 Colo. 178; Parker v. Walker, 86 Tenn. 566, 569.
The chief ground of defense is the fact that the writing copied in the opinion of the Court of Civil Appeals, which was executed by the defendants and Baker, did not bind the latter to take the property, but left to him the alternative, even if he should approve the title, either to take it or to forfeit the $1000 deposited. There would be more force in this if the title had proved satisfactory and Baker had exercised his right to recede from the trade by forfeiting the money deposited. In such case there would have been neither a willingness to buy nor an enforceable contract to buy, one or the other of which conditions would be essential to the broker's right to compensation. But the latter condition is not essential where the first exists and the sale is defeated by the owner of the property. The question whether or not the plaintiff performed the service called for by the contract, is not wholly dependent upon the writing executed between the owners of the property and the proposed purchaser. The fact that the latter really was willing and able to buy and would have bought, notwithstanding he was at liberty not to do so, had he not been prevented by the defendant's failure to produce proper evidence of title must be regarded as controlling and as dispensing with the necessity of a binding contract to purchase which might otherwise have existed. The case differs from those in which there is no evidence of the rendering of the service by the broker but the granting of an option to the so-called purchaser, in the fact that a purchaser was found by plaintiff, a sale to whom was prevented only by the fault of the owner.
But it is contended that the sale was not defeated by any real defect in the title. It is true that the evidence does not show that the title was bad. That was not Baker's contention. It was that the evidences furnished did not show the title to be good; and it was to that defendants were obligated by both their contracts, that with plaintiff and that with Baker. Upon the question thus stated the findings of the jury are in favor of the plaintiff and the question as to title left open by the evidences furnished by defendants were, in our opinion, such as to justify a prudent buyer in refusing to complete the purchase. One of the links in the title was a sale under execution issued upon a personal judgment for money based on service by publication, and it did not appear, and defendants furnished no evidence to show, whether or not the person so cited was a citizen or resident of Texas. The validity of the entire proceeding depended on the answer to that question, and, without evidence that the fact was such as to make the judgment valid, defendants could not be said to have furnished an abstract showing a clear title. Nor can it be said, in opposition to the verdict, that the evidence of title by limitation was such as to require a purchaser to accept it, if that could be said of any claim of title by limitation. All of the objections to this recovery are met by the fact that defendants, by their written contract with plaintiff and with the broker, bound themselves to furnish an abstract showing clear title and that the sale negotiated by plaintiff fell through solely because of their failure to do so; and it is unnecessary that we discuss propositions and authorities applicable to different states of fact.
Affirmed.