Gallagher v. P. W. Bennett's Heirs

• Decision Date: 01 January 1873
• Citation: 38 Tex. 291
• Parties: BRIDGET GALLAGHER v. P. W. BENNETT'S HEIRS.
• Court: Texas Supreme Court

38 Tex. 291

BRIDGET GALLAGHER

v.P. W. BENNETT'S HEIRS.

Supreme Court of Texas.

1873.

Though a tenant will not, in general, be permitted to question the title of the landlord under whom he went into possesslon, yet if there be fraud on the part of the landlord in the execution of the lease, and he is unable by reason of insolvency to indemnify the tenant for rents wrongfully exacted, the tenant may, while in possession, purchase a superior title, if he does so in good faith, from a well grounded fear of eviction, and may rely on the title thus acquired in resisting a suit by the landlord for possession.

APPEAL from Harris. Tried below before the Hon. James Masterson.

Stewart & Barziza, for appellant, cited Sloan v. Martin, 33 Tex. 418, 419;Calmley v. Stanfield, 10 Tex. 551, 552;Glein v. Rice, 6 Watts, 44; Croxall v. Shererd, 3 Wall. 287.

Gray & Botts, for appellees, after reviewing authorities referred to by appellant's counsel, cited the following, viz.: Smith, Landlord and Tenant, Am. ed. 293 and note a; also, p. 294 et seq.; Rawle, Covenants for Title, 262, 263, and 268, 269, note 3; 2 Smith, Lead. Cas. 3 Am. ed. note to Doe v. Oliver, and Duchess of Kingston's case, Mary, 418-424; Smith, Eng. Notes, 509, 510; American Notes of Hare & Wallace, 531, and 540-543.

WALKER, J.

P. W. Bennett brought this suit against the appellant to recover rent and the possession of a lot in the city of Houston.

On the sixth of August, 1861, Bennett executed a lease, for a term of twelve years, to the husband of appellant, with rent reserved. Mrs. Gallagher and her husband paid the rents to Bennett, acknowledging their possession under him, until 1867, when she refused to allow the rents to Bennett. Suit was not brought until the eighth of March, 1869.

John Gallagher, the husband, having died, the appellant, in an amended answer, sets up that though her husband leased the lot from Bennett, that Bennett never had any title, nor was ever entitled to possession of the lot, and that she did not claim under Bennett; that Bennett's only claim of title was through a tax sale, illegally made, and which conferred no title on him; that the property had been sold as belonging to Jno. Birdsall; that in truth it did not belong to him; that Birdsall was dead at the time of the assessment and sale for taxes.

She charges that her husband and herself were ignorant of the facts at the time they leased the lot from Bennett; that Bennett falsely and fraudulently represented to them that he had a good and legal title to the premises, and that they were deceived and defrauded by Bennett's false representations; and that she remained in ignorance of the fact that Bennett was not the true and legal owner of the property until the year 1866, when John Kennedy demanded possession of the premises, and threatened her with a suit and eviction therefrom if she did allow the rent to him; that she employed counsel to investigate the title; that her counsel informed her that Bennett's title was not good, but that Kennedy held a good and valid title. She avers that P. W. Bennett was at the time insolvent and unable to indemnify her in any manner if she continued to pay the rents to him; that Bennett's estate is insolvent; that under these circumstances she purchased the title to the property from Kennedy.

There is some evidence going to show that Bennett was served with a written notice of the defect in his title and demand made upon him to make it good; but the witness by whom the notice was sent, if at all, being dead at the time of the trial, the notice was not proven.

In an amended answer, filed April 1, 1872, the appellant sets out her title from the government down through bona fide purchasers. The verbal evidence introduced by Mrs. Gallagher on the trial, we think, was sufficient to have given her the right to dispute the title of her former landlord, Bennett.

There is not one word of evidence to prove that the appellant has ever acted in fraud of the rights of Bennett; she was herself made to pay to Kennedy an advance of $200 above the price he paid for the lot.

The following bill of exceptions is found in the record: “Be it remembered, that on this, the first day of April, 1872, before our honorable district court, on the...