Andrew E. Blanche, Jr., and Cynthia D. Blanche - Page 19

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          contract requirement.  See Cowman v. Allen Monuments, Inc., 500             
          S.W.2d 223, 226 (Tex. Civ. App. 1973); Hudson v. Wakefield, 645             
          S.W.2d 427, 430 (Tex. 1983).  In the case here, petitioners                 
          materially breached the earnest money contract by failing even to           
          attempt to obtain outside financing, and, thus, they were not               
          entitled to specific performance.11  Since, under Texas law, the            
          right to specific performance resting on an equitable right                 
          measures the time the equitable right comes into being, it is               
          clear that equitable title to the Foxbriar property did not pass            
          to petitioners prior to August 1992.                                        
               Moreover, the facts and circumstances surrounding the                  
          contract in Boykin v. Commissioner, supra, are clearly                      
          distinguishable from those in the instant case.  Under the                  
          contract at issue in the Boykin case, the “taxes for the current            
          year, current rents, insurance, interest (if any), and delay                
          rentals on oil and/or gas leases” were to be prorated as of the             

               11   Petitioners assert that their failure to formally apply           
          for financing resulted from the Hewitt’s failure to make repairs            
          that petitioners believed were necessary to comply with city                
          inspection codes.  As stated previously, supra note 4, the                  
          earnest money contract provided that "On Seller’s receipt of all            
          loan approvals and inspection reports, Seller shall commence                
          repairs".  Petitioners never presented the Hewitts with any loan            
          approval (or any loan refusal) because they never formally                  
          applied for financing.  The Hewitts were required to do nothing             
          further under the contract until petitioners applied for                    
          financing and were either approved or denied the same.                      
          Petitioners’ failure to apply for outside financing and to tender           
          the purchase price constituted a breach of the earnest money                
          contract, regardless of their reasons therefor and, thus,                   
          deprived them of the right to specific performance by that                  

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