46 Tex. 217 | Tex. | 1876
There is no error in the charge of the court of which appellant can justly complain. The material question in the case, on the issue of fraud, was not whether appellees had notice of the lien which appellant held upon the mill when appellees purchased it from Seydel, but whether or not the representations made to them by Seydel, in regard to this lien, were false, and fraudulently made for the pm’pose of inducing them to purchase the mill, and whether they were in fact deceived and misled by these representations. It is no answer to the charge made by appellees, that they were induced to purchase the mill by the false and fraudulent representations of Seydel, that there was but a small and inconsiderable balance of the amounts secured by the lien unpaid, and that he would pay this amount, and relieve the property from the incumbrance upon it—to say that appellees were informed that appellants held a lien upon the mill; and if they were not informed of the amount of the lien, they could have ascertained it by inquiry of appellants or then* agents, at Dallas, or by an examination of the records there; that the notice given appellees was sufficient to put them upon mquiry; and if they failed to make inquiry, they should suffer the consequence. This is undoubtedly true in cases to which this rule is applicable, hut ijt certainly does not ajrply to such cases as. this. Appellants are not seeking to maintain their title to the mill as purchasers without notice of appellees’ lien; hut having surrendered the mill, they are now resisting the effort of appellahts to collect from them, for
It plainly appears, from the evidence in the case, that the consideration for the obligations upon which the suit is brought, unless to a small extent, for the use of the mill while in appellees’ possession, had wholly failed. The obligations being for the delivery of lumber, appellees were entitled to make any defense against them in appellants’ hands that they could if they had been sued by Seydel; and it is certainly needless to say that he could not have forced them to pay for the mill, after it had been taken from them by reason of a lien given upon it by him prior to its. sale to them, whether they had notice of the lien when they purchased or not. The most either Seydel or his assignees could claim of appellees would be the value of the use of the mill while in their possession. This, however, was not demanded of them in this action, and, possibly, did not exceed the amount paid by appellees before they were dispossessed of the mill.
The judgment is affirmed.
Affirmed.