Hatch v. La Garza

• Decision Date: 01 January 1851
• Citation: 7 Tex. 60
• Parties: HATCH v. DE LA GARZA AND OTHERS.
• Court: Texas Supreme Court

7 Tex. 60

HATCH

v.DE LA GARZA AND OTHERS.

Supreme Court of Texas.

1851.

Quere whether the defendant can, after the plaintiff has closed his evidence, demur and thereby transfer the decision of the issue from the jury to the judge.

Where a delivery up or cancellation of deeds or other instruments is sought, either upon the ground of their original invalidity, or of their subsequent satisfaction, or because the party has a just title thereto, or derives an interest under them, the plaintiff must aver an offer or readiness to do all the equity which the facts disclose in favor of the defendant. (Note 10.)

Where a vendee, alleging that he had no legal notice, actual or constructive, of suits which resulted in a foreclosure of mortgages for balance of the purchase-money, and sale of the property to satisfy the judgments, prayed that the judgments of foreclosure might be set aside, and that the conveyances to the purchasers under the judgments might be canceled; Held, That he should have averred and proved payment of the balance of the purchase-money, or an offer or readiness on his part to pay the same.

Where a vendor fraudulently misrepresents the quantity of land, the contract is not obligatory on the vendee, although the land be sold in gross, or by certain boundaries; and in an action to rescind the contract, it is error to reject evidence of the actual quantity of the land; the deficiency in quantity is the basis on which the plaintiff's right to introduce evidence touching the representations of the defendant respecting the quantity of land, and such other circumstances as had a tendency to give character to the transaction, depended. (Note 11.)

Error from Bexar. The plaintiff in error brought suit against Garza to the Fall Term, 1844, of the District Court of Bexar county. Subsequently to that term the plaintiff amended his petition and made Riddle and Maverick defendants.

It appeared from the averments of the original and amended petition and exhibits that, in 1837, the plaintiff purchased of the defendant Garza two tracts of land, one containing one league and a half, the other described in the deed given by the defendant to the plaintiff as containing one half league. He paid at the time $2,000 of the purchase-money; and, to secure the remaining $3,000 contracted to be paid, he executed two mortgages, one upon the larger tract, for $2,000, and the other upon the smaller tract, for $1,000. The plaintiff alleged that he was induced to make the purchase at the prices specified by the false and fraudulent representations of the defendant respecting the title to the larger and the quantity contained in the smaller tract; that the defendant represented that he had a good title to the former, when, in truth, he had a good title to one undivided moiety, only, of the tract; and that he represented that the smaller tract contained one half league, when, in truth, it had been ascertained by actual survey and admeasurement to contain only about six hundred acres. He alleged that any damages he might recover for a breach of warranty by the defendant would not afford him adequate redress for the injury sustained; wherefore he asked that the contracts of purchase be rescinded and that his money advanced be refunded. He further alleged that the defendant Garza instituted proceedings, and, in 1840, obtained judgments of the District Court foreclosing the mortgages and directing the lands to be sold in satisfaction thereof; that he had no legal notice, actual or constructive, of these proceedings and judgments, and that they are therefore void; but that, in pursuance thereof, in 1841, the lands were sold, and the larger tract was bought in by the defendant Garza at less than half its value, and the smaller by the defendant Riddle, who has since sold and conveyed a part of it to the defendant Maverick. He further alleged that the defendants had taken possession of and claimed the land by virtue of, said sales and their respective purchases and the deeds of conveyance made to them in pursuance thereof; and that these proceedings and pretensions of the defendants constitute a cloud upon his title. The prayer of the petition was in the alternative that the original contracts of purchase and sale between himself and the defendant Garza be rescinded, and that the purchase-money advanced, with interest, be restored to him; but if the court should be of opinion that he was not entitled to have this relief, then he asked that the proceedings founded on the judgments of foreclosure of the mortgages might be set aside, and the deeds and conveyances made to the purchasers under those proceedings might be canceled and annulled, and that the possession of the land might be returned to him.

The answer of the defendant Garza admitted the original contract, and the proceedings foreclosing the mortgages, and the sale and purchases under them, as alleged in the petition, but alleged that the proceedings and the purchase by him were fair. He denied the allegation that he had not good title to the larger tract; and in respect to the smaller tract, he alleged that he sold it to the plaintiff by certain metes and bounds; that he did not represent it as containing one half league, or any particular quantity of land. He expressly denied the charges of misrepresentation and fraud.

The defendant Maverick answered by a general denial.

On the trial, the plaintiff read in evidence the deeds from the defendant Garza, to himself, for the two tracts of land; the one purporting to convey one and one-half leagues, and the other, one half league of land. He also read in evidence the records of the proceedings and judgments of the court foreclosing the mortgages, as evidence of their correctness. He then offered in evidence a survey of the smaller tract of land, described in the petition and the deed of the defendant as one half league, which survey was made by the district surveyor, under an order of the court previously obtained, and by which the plaintiff proposed to prove that the tract of land conveyed to him by the defendant as one half league contained less that half that quantity. To the introduction of this evidence the plaintiff objected, and his objection was sustained by the court. The plaintiff then offered in evidence the county map, and called the surveyor to prove, by the plat of the land and the field-notes and boundaries thereof, that the tract of land sold by the defendant to the plaintiff did not contain more than half the quantity called for in the deed. This evidence was also rejected by the court. The plaintiff offered other evidence of the actual quantity of land in the...