50 Tex. 630 | Tex. | 1879
The court sustained exceptions to the petition on the ground of limitation, and the question presented is the correctness of that ruling.
The petition alleged a purchase of land by plaintiff' from defendant in April, 1856; that plaintiff could neither read nor write, and was in the habit of going to defendant for advice; that defendant, knowing the plaintiff had confidence in his representations, and for the express purpose of defrauding plaintiff’ falsely represented that he was the owner of the land, and promised that he would make plaintiff a good title thereto, and that plaintiff was thereby induced to buy and pay for the land, taking from the defendant and carrying home what he believed to be a deed with warranty, but it proved to be only a quit-claim deed. The petition also alleges that in 1873 the plaintiff was evicted by suit, and that he did not discover that his deed was a mere quit-claim deed until, on being sued for the land, he, in the spring of 1873, consulted counsel; alleging, further, that he could not by reasonable diligence have sooner made the discovery. This suit was brought in January, 1874, to recover back the purchase-money and for damages for the alleged fraud.
The established rule in this court is that fraud “ will only prevent the running of the statute until the fraud is discovered, or by the use of reasonable diligence might have been
notwithstanding a general averment of the conclusion that the plaintiff could not by reasonable diligence have sooner discovered the fraud, if the facts stated show, on the contrary, that the failure to discover it sooner was the result of his own laches, then the petition fails to show that limitation only commenced to run from the time of such discovery. (Bremond v. McLean, 45 Tex., 18.)
Our opinion is, that if the alleged fraud constituted a sufficient reason why the plaintiff did not at the time the deed was made discover that it was a quit-claim, his subsequent-failure to inform himself as to the contents of his deed in so material a point was chargeable to his own neglect of ordinary precaution. There is no allegation of any act or representation of defendant subsequent to the deed tending to prevent its examination, nor does it sufficiently appear that the alleged confidential relation of the parties continued until the discovery. If after over seventeen years this suit may be maintained on the excuse that the plaintiff neglected to have his title examined until he was sued for the land, the effect would be to allow such suits to be brought at any time when the nature of the deed is first discovered, no matter how great the lapse of time.
Our opinion is that the petition stated a case in which limitation commenced to run before the alleged discovery of the fraud, and that the exceptions to the petition were rightly sustained.
The judgment is affirmed.
Affirmed.
