15 Tex. 523 | Tex. | 1855
The only question presented by the record is as to the propriety of the ruling of the Court, upon the sufficiency of the answer.
The grounds on which the defendant rested his title to relief, were failure of title, fraud in the plaintiff and the eviction of the defendant from a part of the land purchased. The fraud was alleged to consist in selling lands as property of the estate to which the plaintiff knew he could not make a
The ground on which it has been held in the Courts of South Carolina, and, perhaps, in some other Courts, that the vendee may resist the payment of the purchase money before eviction, is, that the covenant of seizin is broken by the want of title in the seller ; and damages for this breach are allowed as a discount. An outstanding paramount title is considered per se a breach of the warranty of the seller and as co-effective with eviction. (Van Lew v. Iam, 2 Richardron’s Eq. Rep. 348, 354.) But in an administrator’s sale there is no warranty express or implied. The administrator sells only such title a& the estate had. The maxim, caveat emptor, applies ; and mere-defect of title cannot avail the purchaser, either as a defenceto an action for the purchase money, or as a ground for rescinding the contract. (Lynch et al. v. Baxter et al., 4 Texas R. 431 ; Hart. Dig. Art. 1176.) If the defence in this case-can be maintained, it must be on the ground of the alleged fraud and eviction.
The answer contains no averment of any misrepresentation) in respect to the title. The alleged misrepresentation was in-reference to the locality of the land. If there was any sufficient averment of fraud in respect to the title, it is to be found in the allegation that the defendant made the sale knowing-the title to be defective. Whether this would amount to a fraud in a person contracting in his own right, it is not necessary to determine. The maxim, caveat emptor, is, in general,, a sufficient answer to mere silence, in regard to defects open to observation. The alleged paramount outstanding titles, exhibited by the answer, appear to have been duly recorded,, and, therefore, in addition to the application of the maxim,. caveat emptor, the defendant was chargeable with constructive-notice of the superior title. This, however, would not relieve
The original answer was manifestly insufficient in its alligations of fraud respecting the locality of the land. It did not
The eviction is alleged to have been from a part only of the land conveyed ; and an abatement of the price pro tanto is asked. It is alleged to be the most valuable portion of the tract, but what is its positive or relative value is not alleged. The answer ought to be so certain and specific in its averments as that, if admitted, the Court could give judgment upon it. In this respect it is manifestly defective ; it contains no averment by which the Court can be informed for what amount to give judgment. This objection was specially pointed out by the exceptions. But instead of amending the answer in this particular, the defendant, in his amended answer, appears to have abandoned that part of his defence which1 related to the alleged fraudulent representations respecting the locality of the land, and his eviction therefrom, and to have relied on the sole ground of fraud in making the sale, knowing the title to be defective. And this, as we have seen, was not a sufficient ground for avoiding the contract.
In the view we have taken of the case, it does not become necessary to determine what would have been the effect of the legal eviction of the defendant from a part of the land, or of
Whatever may be the personal liability of the plaintiff for an injury sustained by the defendant, in consequence of misrepresentations made by the former, the latter cannot hold him to answer in damages on account of such personal liability-in this action. The demands are not in the same right and cannot be litigated in the same action.
We are of opinion that the Court did not err in adjudging the answer insufficient; and the judgment is affirmed.
Judgment affirmed.