Hurt v. McReynolds

• Decision Date: 01 January 1857
• Citation: 20 Tex. 595
• Parties: ANN S. HURT AND OTHERS v. JAMES S. MCREYNOLDS.
• Court: Texas Supreme Court

20 Tex. 595

ANN S. HURT AND OTHERS

v.JAMES S. MCREYNOLDS.

Supreme Court of Texas.

1857.

In the case of an executory contract for the sale of real property, the purchaser can resist the collection of the purchase money on the ground simply of defect of title or incapacity of the vendor to convey, where it does not appear from the terms of the contract itself, or the circumstances of the sale, that the purchaser, with full knowledge of the facts, agreed to accept such title as the vendor could give; the burden of proof of which is on the vendor. The purchaser had not taken possession in this case. Ante, 261; 19 Tex. 260;27 Tex. 565;28 Tex. 219;post, 601.

It is not stated in the answer whether the sale was public or private, or what constituted the want of power on the part of the executrix, or the defect of title, nor is it shown why the deed was not sufficient. Still, those facts are positively alleged, and the plaintiff below did not point out the defects in the mode of statement, by special exceptions that were applicable; and hence the allegations, though vague and general, show sufficiently the want of title having been made.

See this case as to the plea of failure or want of consideration, where the consideration moves from a third party; and quere, whether the plea could be sustained in this case, except upon the fact that the plaintiff received the note to secure (as alleged in the plea) a precedent indebtedness, or to be a discharge thereof when paid. Quere, also, as to the proper parties.

Error from Tarrant. Tried below before the Hon. Nat. M. Burford.

The note sued on was under seal. There were two answers by all the defendants, not materially different. The first was supported by the affidavit of Haynes to the effect that the facts stated, so far as the same relate to the want or failure of consideration of the note therein mentioned, are true as he verily believes. The second was supported by the affidavit of one of defendants' attorneys, to the effect that the facts stated are true, as he verily believes, as he has been informed. As soon as the first of said answers was filed, plaintiff moved to strike it out, and for special exception assigned, that no privity of interest was shown, between the plaintiff and Elizabeth Blackburn, in the making of the note of $1,100; that the consideration, forbearance or inducement, passing from plaintiff to defendant, was not sufficiently set out, to enable the court to judge whether the consideration has failed or was void or otherwise defective; that said answer was prolix, multifarious, etc. To the second, plaintiff excepted on the ground that it presented no ground of defense, and for special cause, assigned that it did not set up any fraud on the part of plaintiff in obtaining the note sued on, nor any privity of plaintiff in the transaction between Elizabeth Blackburn and said defendants.

The language of the answer, in relation to the making of the note sued on, was as follows: That afterwards, to wit: on the 23d of October, 1855, the said Elizabeth Blackburn, for the purpose of securing a debt, that was then due and owing from the estate of the said Samuel Blackburn to the said plaintiff, James M. McReynolds, and with the privity, knowledge, connivance and consent of the said plaintiff, procured and induced the said defendant Ann S. Hurt, and the said defendants Joseph M. Bounds and David C. Haynes, as her sureties, to make and deliver to the said plaintiff the said note in the plaintiff's petition mentioned; the said Elizabeth, in consideration thereof, then and there indorsing the same as payment upon the note of one thousand one hundred dollars above mentioned. And the said defendants further say, that the said plaintiff James M. McReynolds, at the time of the making of the note, in his petition mentioned, well knew that the said note first above mentioned was made and executed by the said defendants for the purpose aforesaid, and without any good and valuable consideration; and so the defendants say that the said note in the said plaintiff's petition mentioned, was made without any valuable consideration having been received therefor by the said defendants, or either of them.

The last answer referred to a copy of the nuncupative will, filed in the case of Elizabeth Blackburn against Ann S. Hurt et al., marked Exhibit A, and contained in a certified copy of the records of the county court of Collin county, filed in said case of Elizabeth Blackburn against Ann S. Hurt et al., marked Exhibit B. The answer prayed that the copy of the nuncupative will, referred to, be taken as part thereof. It was not in the transcript in this case; nor was the copy of the deed from Mrs. Blackburn to Mrs. Hunt, which was also filed in the other case, referred to. See next case.

The other facts are stated in the opinion; the answers being condensed therein.

Ann S. Hurt and others, for themselves, cited 11 Ill. 328;2 Scam. 444;4 Id. 127; Id. 392; Id. 561, to the point that the defendant was not bound to pay the purchase money, when it was not in the power of the vendor to make a good title; and 3 Hill (N. Y.), 444, and 16 Wend. 597, to the point that the plea that Mrs. Blackburn was not executrix was a good plea in bar; and argued that the pleas sufficiently showed that the note sued on was given for a precedent debt due from the estate of Blackburn to the plaintiff, and that the plaintiff knew that the original note of $1,100 was made for the purpose mentioned in the pleas, and without a good and valuable consideration.

J. C. Easton, for defendant in error, argued that the affidavits to the pleas were not sufficient; and then continued as follows: But if the objections made to the affidavits be not sustained, then does the original answer or either of the amended...