66 Tex. 111 | Tex. | 1886
It is not directly averred in the pleadings that Langford warranted the title to the land he sold to Haralson, but both parties treat the deed as containing a clause of warranty. Being an executed contract, Haralson could not remain in possession of the land, and successfully defend against a suit for the purchase money without establishing, beyond doubt, that the title was a failure in whole or in part; that there was danger of eviction, and also such circumstances as would, prima facie, repel the presumption that at the time of the purchase he knew and intended to [run the risk of the defect. Cooper v. Singleton, 19 Tex., 260; Brock v. Southwick, 10 Tex., 65; Johnson v. Long. 27 Tex., 21.
So far as the previous sale of the land by Langford to W. P. and W. W. Williams is concerned, the allegations of the answer show conclusively that whatever title had been vested in the latter by the deed from Langford was afterwards re-invested in Langford by means of the agreement between the parties to rescind the sale. Although the property was not re-conveyed by deed, yet proof of the facts set forth in the answer as to a recission of the sale would have defeated a suit by the Williamses for its recovery. Moreover, the answer shows that at the time the appellant bought the land he was well aware of the transaction between Langford and the Williamses, and took advice as to its effect upon the title, and acted upon that advice, and not solely upon the representation of his vendor.
Haralson does not allege that the appellee represented that his deed from the Higgins’ heirs had been acknowledged by them all. His allegation is that the appellee represented that he had a good title, and this he might have had, though all the grantees in that deed had not acknowledged it, or no witness had proved its execution. It is not expressly averred that Mrs. Aldridge had not acknowledged it, and, if it had been so averred, the defect was in the line of the written title for which Haralson was bargaining, and he was chargeable with notice of it, there being no allegation that it was concealed from him by his vendor. Woodward v. Rogers, 20 Tex., 176. To entitle a purchaser in possession under warranty deed to defend against a suit for the purchase money, he must allege and prove that the vice in the title upon which he relies was one of which he had no notice. Price v. Blount, 41, Tex., 472.
Besides, he takes the burden of showing that the title is a failure.
The answer does not allege positively that a title to a portion of the land still existed in the idiot sister of the two heirs of Higgins, who conveyed to Langford, but merely that the appellant had heard that there was such an heir since he had purchased ' the land. His information may not have been correct. The right of the vendor to his purchase money cannot be defeated or delayed by a mere rumor as to defects in the title which have reached the ears of the vendee. Danger of eviction does not exist when there is no certainty that the title has wholly or partly failed. Besides, this heir being an idiot, her deed would not have passed her interest or strengthened Haralson’s title. It could have been divested only by an order of the proper court and a deed from the guardian in charge of the idiot’s estate. It is not alleged that such an order was not made and-such a deed executed. The decisions of this court are to the effect that the vendee, in possession under an executed contract, must, in case of an alleged outstanding title, show that it has not passed to his vendor. It is not sufficient to show that at one time it existed in a third party. See authorities cited above.
But if the law was with the appellant on all these questions, his plea is still defective in a respect which is fatal to it It does not set forth the value of the improvements, nor of the rents and profits, and ask an adjustment of the equities between the plaintiff and defendant. It is an equitable defence, if anything, and yet it makes no offer to do such equity as the plaintiff is entitled to demand under the circumstances. See Cooper v. Singleton, supra.
We think the court did not err in sustaining exceptions to the plea, and the judgment is affirmed.
Affirmed.
[Opinion delivered April 20, 1886.]
