14 Tex. 629 | Tex. | 1855
We are of opinion that the Court did not -err, in overruling the exceptions to the answer. The answer avers that .the plaintiff represented that he had a good title to the land, which he contracted to convey, and that confiding in this representation of the plaintiff, the defendant purchased, &g. The exception is that the answer does not state, with
In reference to the effect of such representations as were averred in the answer, and as the parol evidence introduced conduced to prove, the charge of the Court was in entire conformity with our opinion, as heretofore expressed. (Mitchell v. Zimmerman, 4 Tex. R. 75; York v. Gregg, 9 Id. 95, 96.) And upon the effect of the reference to the patent contained in the bond for title, the charge of the Court was, we think, substantially correct. By undertaking to sell land patented to another, the plaintiff must be understood as contracting to convey the title of the patentee. The fact of assuming thus to deal with the property apparently of another, implied an undertaking that he had, or could procure, and make good, the title to his vendee. This he was bound to possess himself of the ability to do, before in good faith and fairness, he could insist on performance of the contract by the latter. To permit him to enforce performance, when at the time of making the contract and at the time of exacting performance, he did not possess the ability to make good the contract on his part, would operate a manifest fraud and injustice to the defendant. If he chose to treat the contract as rescinded, when he sought to recover back the possession of the premises, he should have offered to place the defendant in statu quo, by compensating him for the improvements he had been induced to make upon the land, on the faith of the plaintiff’s undertaking. This was demanded by the plainest principles of equity and justice. It does not
That the law and manifest justice of the case are with the defendant, upon the evidence, seems quite too clear for controversy. The .judgment is affirmed.
Judgment affirmed.