A. W. Andеrson brought this suit in the district court against Ethel Wynn Freeman, individually and as executrix of the estate of her deceased husband, H. C. Freeman, alleging that H. C. Freeman conveyed to Anderson 100 acres of land by general warranty deed; that "although the recited consideration in said deеd was $1000.00, said land was of the reasonable cash market value of $2000.00, and the recital of $1000.00 as the consideration for said land was merely for convenience and was not and does not represent the true consideration and value of said land, which is as aforesаid the sum of $2000.00;” that “Freeman did not have title to said land and wholly failed to deliver possession thereof to plaintiff to plaintiff’s damage in the sum of $2000.00, the consideration for and the reasonable cash market value of said land.” He further alleged that but for the failure of Freеman to deliver possession of. the land he would have grazed and cultivated the land and would have made a profit therefrom in the sum of $450. He prayed for damages in the srtm of $2,450. He *1083 did not offer to surrender the title received by him or pray for cancellation of the deed delivered to him by Freeman. After a trial without a jury the court rendered judgment for $1,000- in damages to Anderson and canceled the deed and rеvested alb title conveyed by it in Mrs. Freeman. Mrs. Freeman appealed.
No findings of fact appear in the record, but it seems to bе agreed that Addie M. Clark originally owned the 100 acres •of land here involved. The Clarks owed Freeman a debt secured by a lien on the lаnd. On April 8, 1935, Freeman recovered judgment against the Clarks for said debt with foreclosure of his lien. On May 7, 1935, order of sale was issued upon such judgment, аnd on June 4, 1935, the sheriff sold the land to Freeman under said order. On November 21, 1935, Freeman conveyed the land by warranty deed to Anderson for a rеcited consideration of $1,000, but the record does not otherwise disclose what consideration was actually paid for the land. In thе meantime, on May 23, 1935, Mrs. Clark filed an application for proceeding under the Frazier-Lemke Amendment to Sec. 75 of the Bankruptcy Act, and thereafter, on December 17, 1935, the federal district judge issued an order staying all ⅝ proceedings in said matter for three years. Shortly after the execution and delivery of the deed from Freeman to Anderson, Anderson 'tried to get possession of the land but was told by Clark to stay off because Freeman did not have the right to possession thereof. Anderson then brought this suit, in March 1936, for damages as above alleged.
The deed from Freeman, conveying the land in question to Anderson, was duly executed and delivered and the purchase price was fully paid. Under these circumstances, the contract for the sale of the land was an executed one. 43 Tex.Jur. 108. In case of an executed contract for the sale of land, mere failure of title in the vendor does not afford a ground for cancellation or rеscission in the absence of fraud or mistake or other exceptional circumstances. 7 Tex.Jur. 938; Milby v. Hester, Tex.Civ.App.,
In this connection, aрpellee asserts that the portion of the judgment decreeing cancellation of the deed was inserted at appellant’s request. There is no support in the record for such assertion except an affidavit of the trial judge found in the back of appellee’s brief. We cannot consider this affidavit as a part of the record. The rule in this respect is announced in 3 Tex.Jur. 426 as follows: “An aрpellate court may not consider matters not disclosed by the record and shown only by letters or ex parte certificates of the trial judge, a certificate of the clerk, affidavits, other ex-parte documents, or the briefs or oral arguments.” See, also, Sterling v. Self,
Appellee’s right of recovery, if any, is one for damages for failure of title. The contract between the parties in this respect is evidenced by the general warranty in the deed. Therefore, if recovery is to be had, it must be had for breach of warranty. Ordinarily, in- order to constitute a breach of warranty, there must be a failure of title and an eviction from the land or a part thereof. 12 Tex. Jur. 41, par. 26. Where the vendee has not taken possession ofi the land and is denied the right of possession thereof by the third party, such vendeе is not required to commit a trespass and take possession of the land but may recover on the warranty on showing an outstanding superiоr title in such third party. 12 Tex. Jur. 44; Jones’ Heirs v. Paul’s Heirs,
The judgment of the trial court is reversed and the cause is remanded for a new trial.