27 Tex. 678 | Tex. | 1864
It is plain from the evidence, that in the deed from Raines to Calloway, there was a misdescription of a portion of the land which Raines intended to convey. The evidence shows that previous to the execution of the deed, Raines had pointed out the land to Calloway. The land about which the parties contracted, was situated in a body, in Union parish, and in township Ho. nineteen. By mistake, however, as is alleged by Raines, and as may well be inferred from the evidence, four of the tracts of land intended to be conveyed, amounting to four hundred and forty acres, were described in the deed as situated in township Ho. nine, instead of township Ho. nineteen. It is shown by the testimony of the register of the land office, that these four tracts of land in township Ho. nine, are public lands, which had never been entered at the time the witness testified. All the balance of the land described in the deed from Raines to Calloway, is situated in township Ho. nineteen. In response to issues submitted to them, the jury found that there was a failure of title to six hundred and eighty-one acres of the land described in the deed from the plaintiff in error to the defendant in error. I suppose that by this verdict the jury meant that the title to the four hundred and forty acres of land in township Ho. nine, was not in Raines at the time of the sale to Calloway; and also that he had failed to show any title in himself to the John Smith tract of forty acres; to the Obadiah Smith tract of eighty 67-100 acres; to the Orasha Squires tracts ©f eighty 46-100 acres, and to the John Palmer tract of eighty
The defendant below excepted to the plaintiff’s petition, that the same was insufficient in law, because it did not aver that the plaintiff had been disturbed or molested in the quiet and peaceful possession, enjoyment and use of the land described in the petition. This exception was overruled by the court below, and this ruling presents perhaps the most important question in the case. In support of the ruling of the court, it is contended that by the law of Louisiana, the purchaser of land is deemed to bp evicted from the possession, whenever an outstanding title is shown in a third person, though there may be no actual claim of title, no adverse entry
We are of opinion, that the court below erred in overruling the
The defendant below alleged that the plaintiff was in possession of all the land which was understood by both parties to pass by the deed. He alleged that there were mistakes in the deed in the description of the land actually bargained, and he asked that those mistakes should be corrected. To this extent, the defendant became the actor in the court below, and the court ought to' have inquired into the truth of his allegations, and upon proof of a misdescription of the land in the deed, the mistakes ought to have been corrected.
There is one important particular in which the verdict of the jury does not appear (with any clearness) to be sustained or warranted by the testimony. The proof showed that in the contract of sale between Raines and Calloway, the land Conveyed by Raines was estimated to be worth ten thousand dollars in the aggregate; or at least this may be inferred from the proof. The evidence also showed that there was great disproportion in the value of the different lots or parcels of land conveyed. The jury found that there was a failure of title to six hundred and eighty-one acres, and they valued these six hundred and eighty-one acres at the average value of the whole amount of land conveyed, whereas, the true measure of damages, if there was in fact a failure of title to any portion of the land, would be the actual value of the particular lots or parcels to which there was a failure of title; to be ascertained by their relative value compared with the balance of the land, assuming the price agreed on by the parties as the value of the whole. What is fatal to the judgment in this particular, is, that the verdict was a special one, and did not ascertain the particular tracts to which there was a failure of title, so that the evidence of value could be applied. The rule is well established, that a special verdict must find every fact necessary to show that the judgment is a proper one. The verdict cannot be aided by the general mass of the testimony.
The judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.