Another v. Averitt's Adm'r.

• Decision Date: 01 January 1853
• Parties: MAYFIELD AND ANOTHER v. AVERITT'S ADM'R.
• Court: Texas Supreme Court

11 Tex. 140

MAYFIELD AND ANOTHER

v.AVERITT'S ADM'R.

Supreme Court of Texas.

1853.

An allegation that the defendant, who claimed the property as an innocent purchaser, knew that the plaintiff claimed it, when he made the purchase, is good on general demurrer.

Information by one who has seen the evidence of the claim, that a third person claims property about to be sold, is sufficient to put the purchaser upon inquiry of such third person in respect of his claim.

Where the answer contains a general denial only, the defendant will not be permitted to prove that he acted as agent for another.

One who purchases and takes possession of property, with information that it is claimed by a third person, and then sells it, cannot, when sued by such third person for its value, defend himself on the ground that he acted as agent for another.

Appeal from Fayette. Suit by the appellee against the appellants for the value of certain negroes. It appeared that Averitt had given Mayfield a bill of sale of the negroes, and taken a separate defeasance. The bill of sale was recorded, but the defeasance was not. Mayfield sold to Ward, his co-defendant; and the petition alleged that “Ward knew that Averitt laid claim to the negroes.” There was a general demurrer, which was overruled, and a general denial. The proof was that one of the witnesses, who had seen the defeasance, had told Ward that Averitt claimed the negroes, and advised him not to purchase them. Ward had sold the negroes; and he offered to prove that he had been acting as Mayfield's agent, merely; but the evidence was excluded.

Green and Chandler, for appellants.

Webb & Harcourt, for appellee.

LIPSCOMB, J.

The appellants suppose the Court below erred in overruling their general demurrer to the petition, because the averment, or allegation, that Ward had purchased with notice of the claim to the property purchased by him, is not sufficiently explicit to charge him with notice; that the petition only charges that “Ward knew that Averitt laid claim to the negroes,” and did not state the character of the claim. This, if a defect, is not such as would go to the foundation of the action, and show that there was no cause of action; and any defect in the form of the allegation, should have been pointed out by special exception. It is, however, believed to have been sufficient to lay the foundation for letting in evidence, to fix the notice on him; and the evidence is full and satisfactory, that it was...