Hall v. Jonathan York's Adm'r.

• Decision Date: 01 January 1859
• Citation: 22 Tex. 641
• Parties: A. C. HALL, ADM'R, v. JONATHAN YORK'S ADM'R.
• Court: Texas Supreme Court

22 Tex. 641

A. C. HALL, ADM'R,

v.JONATHAN YORK'S ADM'R.

Supreme Court of Texas.

1859.

In an action on a title bond for land, where the vendor is unable to make title, and there is no special damage (or fraud?) alleged, the measure of damages is the purchase money and interest.

If the rule be different in cases of fraud, it is not in every case of fraud that it prevails. Every man who sells land that does not belong to him, commits a fraud. But unless there be additional circumstances of fraud, and special damages resulting to the vendee, the measure of damages is only the purchase money and interest.

In an action by the assignee of a title bond for land, against the obligor, where it is not alleged that any consideration was paid to the obligor, although there be a general charge against him of fraud in the sale of the land, and the consideration paid by the assignee to the obligee be fully stated, a demurrer to the petition is properly sustained, and the petition dismissed, upon the plaintiff's declining to amend.

Although the judge in sustaining the demurrer, decided that, in no event, could the plaintiff recover more than the purchase money and interest, if the plaintiff could have made out such a case of fraud on the part of the obligor, as would have entitled him to a different measure of damages, he should have tendered an amendment, presenting to the court the facts upon which he relied.

APPEAL from De Witt. Tried below before the Hon. Fielding Jones.

The petition contained a general charge of fraud by appellee's intestate, in the sale of land to Cox, with specific allegations, showing the failure of his title; but there was no allegation that the facts which occasioned his title to fail, were known to the obligor. The facts are stated in the opinion.

Wm. S. Glass, for appellant. In sustaining the defendant's exceptions to the amended petition, the district judge ruled that the plaintiff could recover only the money paid by Cox, with interest. The plaintiff was thus precluded from amending, except in conformity with the opinion of the court, which he declined to do. The question is not, solely, whether the amended petition was defective, but whether it could not have been amended, so as to entitle the plaintiff to a different relief from that to which he was restricted by the opinion of the court. If he might have recovered, upon proper allegations and proof, the purchase money paid by his intestate to Cox, or the value of the land when the fraud was detected, or at the time of the rejection of the bond by the administrator, or at the time of the commencement of the suit, and interest, or its value at the time of the trial, or his actual and necessary expenses in the investigation of the title, it is submitted, the case must be reversed.

J. J. Holt, for appellee.

BELL, J.

This cause was before the court on a former appeal. The report of the case will be found in 16 Tex. 18. The suit was originally instituted by the appellant's intestate against Jonathan York, the administrator of John York, to recover five thousand dollars, as the penalty of a bond for title to land. The original petition set forth the execution of a title bond by John York to James Cox, for half a league of land, and the subsequent assignment or transfer of the bond, by James Cox to James Hall, Cox having sold the half league of land to Hall. The petition represented that York could not make title to the land, and prayed judgment against his estate for five thousand dollars, the penalty of his bond.

On the first trial the jury returned a verdict that the...