| Tex. | Jul 1, 1857
We are of opinion that the exception to the special plea in defence was properly sustained.
The defendant alleged that he had been ousted and ejected from four of the lots purchased; but what four, out of the tract of nine hundred and sixty acres, is not averred or specified. He alleges that since his purchase he had discovered that the plaintiff had sold these lots; but he does not state to whom they were sold; whether the titles of the purchasers were on record at the time of his purchase. He charged that he had been ousted and ejected. His defence amounts to this, that there were four lots somewhere on this large tract from which he had been ousted, but without any averments identifying the lots, or allegations of such facts as would show an outstanding title indisputably superior to his own; for this, if averred, would without actual eviction, have constituted a good defence in a suit for the purchase money.
The defendant avers also that plaintiff fraudulently concealed from him the fact of said sale, and by his representation and deed induced him to purchase the land. This averment is also objectionable for its vagueness. No specific facts and circumstances are alleged, which would amount to a fraud. He alleges that the plaintiff concealed a prior sale of some indefinite, undescribed portions of the land; but does not aver, as we ■ have before stated, that the purchasers unden this sale, which was concealed from him, had a title superior to his own. He does not show that the conveyances under the prior sale had been recorded. If they were not and he had no actual notice, as he avers, his title could not be impeached by those previously executed ; and whether the prior sale was concealed from him or not, is immaterial; as the fact one way or the other, if he had the best title, could not affect his rights.
The defendant may have had a good defence, but there is such want of certainty, so much vagueness in the averments that the plaintiff could not be required to respond by pleading; nor did they lay a sufficient foundation for the introduction of evidence.
The defendant holds by deed with warranty; and when he pleads defect of title as an offset or in reconvention against the payment of the purchase money, he must aver such facts as would show, beyond dispute, that his title to-the whole or to
Judgment affirmed.