25 Tex. 213 | Tex. | 1860
It is shown by the record that John O'Connor purchased from the estate of one Fessenden, a tract of land situated in Colorado county, and that the appellee, Cornelius O’Connor, became the surety of John O’Connor upon a promissory note executed to the administrator of Fessenden’s estate, for the purchase money. This debt to Fessenden’s estate became due on the 4th of April, 1855; suit was commenced by Fessenden’s administrator, against John O’Connor and Cornelius O’Connor, for the recovery of this debt, on the 6th of November, 1855; judgment was obtained by Fessenden’s administrator on the 14th of June, 1856; an order for the sale of the land in Colorado county issued on the 11th day of July, 1856, and the land was sold, in pursuance of the order, on the first Tuesday in September, 1856; an execution then issued, directed to the sheriff of Galveston county, for the purpose of collecting what remained due on the judgment after the sale of the land in Colorado county. This execution was levied on the property of Cornelius O’Connor; Cornelius O’Connor paid the balance due to the estate of Fessenden. The testimony shows that, on the 20th day of February, 1855, the lots in controversy in this suit were conveyed by John O’Connor to Ann Duffy, for the nominal consideration of fourteen hundred dollars. It is also shown that Cornelius O’Connor caused an advertisement to be published in the Tri-Weekly News, (a paper pubEshed in the city of Galveston,) for several weeks prior to the 8th day of October, 1856, by which advertisement, “all persons were cautioned from buying or trading for ” the lots in controversy, “ as the title to the same was in dispute.” On the 8th day of October, 1856, Ann Gormly, (formerly Ann Duffy,) and her husband, Peter F. Gormly, conveyed the lots in controversy to the appellant, Francis Bacon, for the consideration of fourteen hundred and sixty dollars, which was
The evidence shows that when Cornelius O’Connor caused the advertisement to be inserted in the newspaper, the appellant took legal advice concerning the validity of the title of Ann Gormly, and was told that her title was a good one, so far as any information in relation to it could be gained from the records of the county. It is shown also that a friend of the appellant went to Cornelius O’Connor, and told him that the appellant thought of purchasing the lots from Gormly and wife; in reply to which Cornelius O’Connor said in substance, that if the appellant bought the lots he would buy a lawsuit—and he then went on to state that “ John O’Connor had purchased a piece of land at administrator’s sale, on credit, and that he, Cornelius, had 'become John O’Connor’s surety for the purchase money—that John had failed to pay the note—that suit had been brought on said note and judgment recovered, and the land sold for very much less than its original price, and that he, Cornelius, would have to pay the difference, and that if he did have to pay the difference, he would hold the lots—that John O’Connor had no right to sell the lots until the debt for which he, Cornelius, was surety, was paid.” The appellant’s friend, pursuing the conversation with Cornelius O’Connor, told him that the proceedings in relation to the debt for which he was security would not affect the validity of John O’Connor’s conveyance to Ann Duffy—to which Cornelius O’Connor replied, “ I will have the lots.” It is also shown that the appellant Bacon had a conversation with Beisner, the administrator of the estate of Fessenden, in relation to these lots, and Beisner told the appellant in that conversation “ that John O’Connor had made a sale or made his property over to somebody, about the time his debt to Fessenden’s estate became due.” The main question which is presented to our consideration is, whether or not the appellant, Francis Bacon, purchased the lots in controversy from Gormly and wife under circumstances which constitute him a purchaser in good faith, without notice of any defect in the title. It is contended on the part of the appellant that Cornelius O’Connor is estopped from making any objection to the
We cannot admit it to be a correct proposition that Cornelius O’Connor was under obligation to be at all times ready to explain his objections to the title of Mrs. Gormly, and that if, in attempting to explain those objections, he omitted to state every fact which showed that his objections were well founded, without any intention to conceal anything, he would ever afterwards be estopped from impeaching her title by showing facts which he had before omitted to state, or was unable to state. If Cornelius O ’ Connor had been called upon by Hurlbut, as the friend of Bacon, and asked to state his objections to the title of Mrs. Gormly, and had obstinately remained silent; or if he had stated any fact as the sole ground of his objections to Mrs. Gormly's title, which fact did not affect the validity of the title, then the case would have been different. But here, iii what appears, so far as Cornelius O’Com-
We are of opinion that the instructions of the court to the jury, all taken together, contain a correct statement0 of the law of the case, and are as favorable to the defendant in the court below as-the circumstances of the case warranted. The evidence does not tend in any degree to the conclusion that Cornelius O’Connor, in his interview with Dr. Hurlbut, concealed anything, nor does-it. show that he was called upon to state his whole case, or informed that Dr. Bacon would act upon the facts which he might then disclose.
We are of opinion that the court below did not err in any of the rulings complained of in the assignment of errors. We think the evidence supports the verdict of the jury, and that there is n<* error in the judgment. The judgment of the court below is therefore affirmed,
Judgment affirmed.