| Tex. | Jul 1, 1857
This case involves the same questions as those determined in the ease of Hurt et al. v. McReynolds at this Term. One of the grounds of exception, to the answer of defendants below, is, that the allegation that Mrs. Blackburn had not made and delivered a sufficient deed to Mrs. Hurt, is untrue in fact, and to show its falsity plaintiff below brings into Court and files a certified copy of an instrument purporting to be a deed from Mrs. Blackburn to Mrs. Hurt. This, of course, was not a matter that the Court should have considered on demurrer. The answer must be determined on its own allegations. The demurrer, for the purpose of testing its sufficiency, admits them to be true.
Whether Mrs. Blackburn could make a good title to the lots, under the nuncupative will, will not now be determined, as the question has not been fully argued. If it were determined that under this proceeding in the County Court, and under this nuncupative will, Mrs. Blackburn could make a good title, the answer showing that fact, would be sufficient to bar the action.
If, however, it were determined that Mrs. Blackburn, under such will, could not make a good title, the answer would be sufficient; because it states that she has not delivered a deed. For as the contract is still executory, according to this allegation of the answer, it is not necessary for the vendee to allege that, at the time of the purchase, she was not aware of this defect of title, and did not agree to take, at her own risk, such title as Mrs. Blackburn could make. This she would have had to set forth, if the answer had admitted that the contract of purchase was executed by the delivery of a deed. (Cooper v. Singleton, decided at Tyler, 1857, 19 Tex. R. 260; Hurt v. McReynolds, supra.)
The point upon which the case must be reversed is, that the
Reversed and remanded.