31 Tex. 334 | Tex. | 1868
—This suit was brought by the plaintiff in
The plaintiff received a conveyance from the defendant for one-third of a league of land, set out by metes and bounds, and paid the full consideration, according to the' contract, for that amount of land. Subsequently, however, by actual survey, it was found that there was a deficit in the land of two hundred and thirty-five acres, by reason of a conflict with another survey, covered by a superior, older, and paramount title. The plaintiff instituted this action to recover the excess of payment for the two hundred and thirty-five acres, which he alleged to be more valuable in quality than any like portion of the survey, and he therefore sought to recover an amount proportionate to that superior value.
The action was brought on the 29th day of January, 1859. The deed for the land was executed and delivered on the 1st day of April, 1852.
On the trial of the cause two questions were raised, and are made in the assignment of errors, and demand our consideration:
1st. Did the court err in excluding a deposition, taken by agreement of parties, in a former suit between the same< identical parties, in relation to the same identical subject-matter?
2d. In reference to the statute of limitation, pleaded by the defendants, did the court err in charging the jury that the statute began to run from the date of the deed, and not from the discovery of the mistake ?
Mistakes, as well as accidents and frauds, are certainly subjects of equitable jurisdiction, and courts will take cognizance of them as such. It. is true, mistakes of law
Mistakes of fact, however, as laid down by Justice Story, as well as other elementary writers,, where the fact is a material one, of which the party was ignorant at the time of the contract, are always “voidable and relievable in a court of equity.”
In this case there seems to have been an innocent and mutual mistake of a very important fact by both parties. The one thought, no doubt, he was selling and conveying one-third of a league of land, and the other honestly believed he was buying and getting a good title to that amount of land from the exhibition of the muniments of title to it by the vendor. This purchase was not what is denominated a purchase in gross. It was for a definite and specific amount of land, one-third of a league of land, and is unlike the purchase of a tract of land with courses and distances defined, and simply estimated to contain a prescribed number of acres. Such a purchase would be regarded as a purchase in gross. And if there should turn out to be a deficit in the land, in such a case equity would withhold any compensation and damages, because the purchaser has the means afforded him at the time of his contract to detect that deficit. By reasonable diligence it was in the power of the purchaser to ascertain the fact. If by culpable negligence he fails to do so, he will not be relieved, because the law always aids the vigilant, and not those who slumber over their rights. If the boundaries of
I. Upon the question presented for our consideration,' whether the court erred in the exclusion of the deposition taken by agreement of parties, in a former suit between the same identical parties, in relation to the same identical subject-matter, we may remark, that we cannot perceive the principle of law by which the court excluded this deposition.
It is laid down by Green! eaf, as well as other writers upon evidence, that all that is wanting in the use of a former judgment or a former deposition is mutuality between the parties. Yet the rule, he says, in regard to depositions, is applied with more latitude of discretion than in the case of judgments. A perfect identity of parties is not necessary in depositions. Philosophically considered, the essential matter is, had the opposite party a fair opportunity for the cross-examination of the witness upon the points involved in the controversy. If so, he ought not to be heard to object to the testimony, whether he availed himself of his right of cross-examination or not,
We know of no principle of the common law which would exclude the deposition. Nor are we advised of the existence of any statute of the state which demanded its exclusion. The act of the 20th December; 1836, (Paschal’s Dig., Art. 3706,) declares that “the common law of England, as now practiced and understood, shall, in its application to juries and evidence, be followed and practiced by the courts of this republic, so far as the same may not be inconsistent with this act, or any other law passed by this congress.”
We are not-aware of any statute in this state in consist-ent with the application of the common law made in this case. We are therefore of opinion that the court did err' in excluding the deposition offered. As no statement is made by the judge in the bill of exceptions why the deposition was excluded, we must presume that the witness could not be personally produced, so as to get his testimony viva voce; and the opinion of the court was based upon the idea that the deposition was admissible under no circumstances.
II. Did the court err in charging the jury that the statute of limitation began to run from the date of the deed, and not from the discovery of the mistake ? It must be borne in mind that the right sought in this proceeding is
What principle of equity, then, will govern in this case ? We must go to courts of equity to ascertain what rule is to govern in a matter so exclusively a thing of conscience and of equalizing justice. Justice Story says, “the question often arises, in cases of fraud and mistake, &c., under what circumstances and at what time the bar of the statute of limitation begins to run. In general it may be said that the rule of courts of equity is that the cause of action or suit arises when and as soon as a party has a right to apply to a court of equity for relief. In cases of fraud or mistake it will begin to run from the time of the discovery of such fraud or mistake and not before.” This is in consonance with reason and the true philosophy of remedial justice, and certainly ought to obtain in every forum where it is undertaken to be dispensed. The principle thus announced by American authority is fortified, too, by English precedent, by a jurist of a like enlightened sense of distributive justice.. Baron Alderson maintains that “the
Reversed and remanded.