8 Tex. 418 | Tex. | 1852
The first assignment cannot be sustained. It presents no ground of defense, because it presents a question that the complainant could not be called upon to take issue upon, as it shows no legal or equitable right in the defendants adverse to the title sought by the amendment to be impeached to authorize them to bring its validity in question. When called upon t.o show cause why a conveyance of the title to the certificate should not be made, it is not for them to say that they will not rescind, because the title you conveyed to us is worthless and void, and therefore we will hold on to it, although it was obtained through fraud and misrepresentation and without consideration. If any person except the Government can raise the objection ro the patent that it had issued on a headlight certificate fraudulently obtained from I he board of land commissioners, it must be by one who holds an (‘quit-able title that wotdd be paramount to all others in the event of tlie title derived from the certificate of tlie headlight being removed out of his way; and it must be in a contest in which tlie land claimed by virtue of this certificate, attempted to be attacked in a collateral way, is the subject of controversy. This is not a suit to recover the land embraced in the patent; it is to rescind a contract on the ground of fraud, and the complainant does not ask to have his title adjudged to him. When a suit is brought for the land, it will be time enough to impeach the title on the ground of fraud in its inception. It is not,however, necessary to discuss what would be the right of parties if a suit were brought for (ho land. This is not; and if the certificate is fraudulent and void, it affords no reason in this case for refusing the rescission of the contract. If tlie proposed amendment is true, the defendant has tlie less to lose by the rescission of the contract.
The second error assigned is the refusal of the court to grant a continuance. If a continuance has been refused and the party forced into a trial unprepared, and l lie verdict is against him, the correctness of the ruling of the court in refusing- [he continuance is certainly a question that can be tevised by this court. We will then inquire if the showing is such as ought to have entitled tlie defendant to a coniinuance under the circumstances of the case. Tlie affidavit
Wo will consider the fourt.li error before the third, it being more in the order we have pursued. The verdict, of the jury is said not to he responsive (o the issues, and that, it is vague and uncertain. The object in calling a jury was to inform tlie judge of the truth of the facts in controversy between (lie parties complainant and the defendants. The jury return a verdict for the, plaintiff, that is that they find the facts in favor of the plaintiff, and consequently against (lie defendants. The certainty of the verdict can easily be attained by referring to the, matters and things contained in the hill and the answer. Courts will'always sustain a verdict, and not disregard it on the ground of uncertainty, if Hie record will render it certain. This question was discussed by lilis court, in the case of Burton v. Anderson, 1 Tex. R., 93, and again in the ease of John Mays v. Lewis, 4 Tex. R., 38, in which the subject was elaborately investigaled "and the authorities examined. In that case we decided that if t,lie verdict could have been made cerfaiu by a reference to 1 lie record it would have been good, but for certainly it depended on matters of evidence before the jury and not apparent on the record, and was therefore not amendable, on which ground the judgment rendered on it was re,versed. There is no doubt about the finding in this ease, when it is referred to the subject-matter the jury were to act on in the bill and answer.
The appellants contend under their third assignment that the decree is not warranted by the finding of the jury. The
object of the bill was to annul a certain conveyance alleged to be without any consideration, and tr have been obtained through the fraudulent misrepresentsKois: $4 the defen-
There was no bill of exceptions and no statement of facts, and nothing presented for review but what appears upon the face of the record. The decree rescinds the contract of conveyance, and decrees that the power of attorney shall be surrendered to complainant and (he bond of the defendants shall be surrendered to them, and decrees cost, against the defendants. We can perceive no error in the decree; it conforms to the object of the bill in every respect, and it is affirmed.
Judgment affirmed.