May v. Taylor, 27 Tex. 125

May v. Taylor

27 Tex. 125 | Tex. | 1863

Bell, J.

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 *128alleged that there was an outstanding mortgage upon the land for the purchase money of which, the note sued on was given. The answer further averred, “that said mortgage deed was to have been paid off and fully discharged by the plaintiff in this case, said Taylor, administrator of said Walworth, deceased; and that the land was thereby to be released of this lien, which was the express agreement with plaintiff in this case, and the terms upon which the land in question was purchased. Defendant avers that said mortgage is still unpaid and unsatisfied, and is now a subsisting lien upon said land. Defendant further avers, that he believes said estate of Walworth is insolvent, and that he would not be able to make the amount of said mortgage and interest from said estate, in case he should be compelled to pay off said mortgage.”

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.