Cook v. Moore

| Tex. | Jul 1, 1873

McAdoo, J.

The court below did not err in overruling the motion of plaintiff to strike out defendants’ plea, that they were purchasers without notice.

If the deed from plaintiff to lies was procured from the plaintiff by the infamous fraud and villainy alleged in the plaintiff’s petition, on a trial between them the deed would certainly, on proof of the allegations, be held to be absolutely null and void. But, as between the original parties, lies’ s title is prima facie good, even as to them, and it could only be avoided by a suit,' and a decree annulling and canceling the deed.

As the deed, on its face, imparted title in lies, and the deed was on record and had stood on the record for years before the defendants purchased, their title was undoubtedly good, however fraudulent the deed to lies may have been, if they purchased without notice. And -it would have been error to have sustained the motion to strike out the plea of the defendants, setting up their innocent purchase, without notice.

We think the court did not err in refusing the special issue asked to be submitted to the jury.

The facts disclosed as to whether defendants requested Moore to purchase the land for them, and whether Moore knew of the condition of the title, were in evidence and were doubtless considered by the jury in making up their verdict on the issue submitted on the subject of notice.

The case seems to have been fairly tried on all the testimony offered, and the jury returned a verdict, we think, fully supported by the evidence.

The court before whom the cause was tried has refused a new trial, and however strong our sympathies may be in behalf of the plaintiff, we must adhere to the rule so well established in this court. ,

The judgment of the District Court must, therefore, be affirmed.

Affirmed.