Cook v. Jackson
| Decision Date | 01 January 1857 |
| Citation | 20 Tex. 209 |
| Parties | FRANCIS J. COOK AND ANOTHER v. WILLIAM JACKSON. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Where there is no allegation of fraud or imposition, if the vendee who has gone into possession under a deed with covenants of warranty, would defeat an action for the purchase money, although it is not necessary for him to prove eviction, yet it is not sufficient for him to throw suspicion on the title and offer to restore the possession; but he must show that there is a valid subsisting title, outstanding in a third person, and that the land is actually claimed under it. 2 Tex. 148;10 Tex. 367;29 Tex. 282.
Appeal from Washington. Tried below before the Hon. R. E. B. Baylor.
There was no allegation that defendants did not know the condition of the title, when they made the purchase; on the contrary, there was evidence to the effect that the plaintiff and Wallis, before the purchase by defendants, got Cook and another to appraise the value of the lot without the improvements, Wallis saying that he owned half the ground; and that the lot was appraised by them at $25. Defendants alleged and proved that the property had been levied upon and sold upon a judgment against Terrel A. Jackson, recovered after their purchase. The other facts are stated in the opinion.J. D. & D. C. Giddings, for appellants.
Lewis & Davis, for appellee.
The action was for the recovery of a promissory note, given for the purchase money of certain lots. The defense was that the plaintiff, when he sold, had no title to the lots, and consequently that the note was without consideration. To maintain this defense the defendants produced in evidence a quit-claim deed from one Haller and wife to Terrel A. Jackson, dated in November 1849, and proved that said Jackson had been subsequently in possession and had added to the improvements; but before the sale and conveyance by the plaintiff to the defendants, he had quitted the possession and left the country. There was no evidence that the plaintiff held or claimed to derive his title from or through either Terrel A. Jackson or Haller and wife, or that the latter had any title when they made the deed to Jackson, or that he, or any one else, sets up any claim to the lots adversely to the defendants. They have not been disturbed in their possession. In view of these facts is the defense made out? We think not. In Tarpley v. Poag, 2 Tex. 148, and Perry v. Rice, 10 Id. 367, the doctrine was held, that where the vendee has accepted a deed with warranty, and gone into possession, to enable him to resist the payment of the purchase money on the ground of a paramount title outstanding in a third person, it devolves on...
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Lott v. Dashiell
...else, but there need be nothing more than an actual claim under an outstanding paramount title, or else danger of eviction by it. Cook v. Johnson, 20 Tex. 209, and cases cited supra. The Edwardses by their deed conveyed no title of any character — not simply an inferior title — but by it me......
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Luckie v. McGlasson
...not allege that he has been evicted, or that he is in danger of being evicted, by the party having the superior outstanding title. Cook v. Jackson, 20 Tex. 209. Nor does he show that, if evicted, he would be remediless upon his covenants of warranty; he does not show that the vendors are in......
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