27 Tex. 125 | Tex. | 1863
We are of opinion that the court erred in sustaining the exception of the plaintiff to the amended answer of the defendant, which was filed on the 15th of April, 1855. The answer
We think this plea presented facts which entitled the defendant to be let in to his defence. In the case of Cooper v. Singleton, (19 Tex., 260,) it was said—“ The difference between the liabilities of the vendee under an executory and executed contract is this: that in the former he should be relieved by showing defect of title, unless, on proof by the vendor, that this was known at the sale, and it was understood that such title should be taken as the vendor could give. In the latter, the vendee should establish, 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.” The case before us is the case of an executed contract; but we think the facts alleged in the plea come clearly within the spirit of the rule laid down in the case of Cooper v._ Singleton, and that the court erred in sustaining the plaintiff’s exception. The judgment below is reversed, and the cause remanded.
Reversed and remanded.