Johnston v. Powell

34 Tex. 528 | Tex. | 1871

Walker, J.

The plaintiff in error conveyed by deed, with general warranty, to the defendant in error, 553i¡ acres of land, situated in Falls county, it being a part of the headright league granted to William Peterson. The record shows that Johnston derived his title by quit claim deed from Mrs. Peterson, after the death of her husband. That Peterson., in his lifetime, deeded the south half of the league to one Montgomery, including the land jin .question. Tbpt Johnston had ajso conveyed all the interest derived by his deed from Mrs. Peterson to one John A. Fortune, prior .to his conveyance tp Pp.well; so that when be made his deed to Powell, he, in reality, had no title or interest in ,tbe land, even if he Requited any by the .deed from Mrs. Peterson. Besides this, the land was shown to be included in a Spanish grant to one Juan J ose Acostá, of a prior date to the grant to Peterson. Powell paid to Johnston for the land P- pegrp female slave and her child, a claim for a bounty warrant, and gave his note for about sixteen hundred dollars.

The utter insolvency of Johnston was alleged in the petition, and proven upon the trial. The' jury found a verdict in favor of Powell, and the court rendered a judgment in his favor, decreeing that the deed from Johnston to Powell be set aside, vacated and annulled; that Johnston deliver up the note to Powell, and also the transfer of the bounty claim; and that Powell recover the possession of the negro slaves, or, in default thereof, judgment for their value and hire, as found by the jury.

The question whether a covenant of general warranty necessarily implies a covenant of seizin in the grantor, is not a necessary question to be decided in this ease, and as it has been strongly controverted, we will not here announce an opinion upon it.

This was not an action to recover for the breach of covenant; it was an equitable proceeding to set aside a contract on the ground of fraud and failure of consideration.

The petition sets up a good cause of action. It avers the utter failure of the consideration, the insolvency of Johnston, the grantor, fraud in the execution of the contract, and the bona fide payment of the consideration by the plaintiff The reasons quia timet, given by the. plaintiff, are- sufficient, under the rulings in Cooper v. Singleton, 19 Texas, 260, and Woodward v. Rogers, 20 Texas, '178, to entitle him to the form of relief he seeks.

The rulings of the district court are substantially correct, and; •we believe that equity has been done.

The judgment of the district court is therefore affirmed.

Affirmed.