Lemmon v. Hanley

• Decision Date: 31 October 1866
• Citation: 28 Tex. 219
• Parties: R. A. LEMMON v. JOSHUA S. HANLEY ET AL.
• Court: Texas Supreme Court

28 Tex. 219

R. A. LEMMON

v.JOSHUA S. HANLEY ET AL.

Supreme Court of Texas.

October, 1866.

A defendant may plead as many pleas as he desires, but each should be complete of itself, or at least the whole answer should, if true, present a valid defense to the plaintiff's action. Pas. Dig. art. 1441, note 548.

To a suit on a promissory note executed to payee or bearer and sued on by the bearer, the defendants plead that the plaintiff acquired the note after maturity and without consideration; that it was given by these defendants in lieu of other notes executed by them to the payee, in consideration of negroes sold to them by the payee with warranty of title; that defendants had since sold the negroes to other persons with warranty of title; that after the purchase of the negroes from the payee by defendants, but before their execution of the note sued on, they learned that the negroes were claimed adversely by certain other parties, of which they notified the payee, who thereupon represented to defendants that he had compromised with said adverse claimants, and that they had engaged to release their claims if he would procure and surrender to them the note of these defendants for the purchase of the negroes still unpaid by them; that by these representations the defendants were induced to execute to the payee the note sued on; that the said representations were false and fraudulent, and the payee had never procured the releases of the said adverse claimants, but that the said claimants had instituted suits for the negroes against the persons to whom these defendants had sold them with warranty as aforesaid; that the payee and the plaintiff were confederating with said adverse claimants in the prosecution of their suits, and at the same time were fraudulently seeking to recover against defendants on the note now sued on; that one of the notes, in lieu of which the note in suit was given, was not surrendered to the defendants by the payee, but he promised to destroy the same, instead whereof it was in suit against these defendants in another action: Held, that, as a plea of failure of consideration, the answer was defective, in not averring that the adverse claimants of the slaves held a subsisting and superior title to them, and that the defendants purchased the slaves without notice of such title: Held, that the defense presented is insufficient, inasmuch as it shows that the defendants still enjoy the proceeds of the negroes, and neither offer to place their vendor in statu quo, nor make the adverse claimants parties to the suit, so that the rights of all may be adjudicated. 7 Tex. 497;10 Tex. 65;15 Tex. 44;17 Tex. 627;19 Tex. 260;27 Tex. 565.

It has been settled by this court, that an adverse claim and suit thereon are not evidence of a superior outstanding title.

False representations will not afford relief to the party complaining of them, unless they related to something material to his interests and have resulted in his injury.

The ruling in Harris v. Cato, 26 Tex. 338, that a plea impeaching the consideration of a note not under seal need not be sworn to, referred to and approved. Pas. Dig. art. 229, note 290; 26 Tex. 338.

Pleadings are intended to apprise the adverse party, before the trial is commenced, of the cause of action or ground of defense, in order that each party may prepare himself with his evidence in time for the contest. Neither party can be held bound to answer matters not averred in the pleadings, and hence the rule that the allegata and the probata must concur. 1 Tex. 443.

APPEAL from Tarrant. The case was tried before Hon. NAT. M. BURFORD, one of the district judges.

The facts of this case appear fully in the opinion of the court, by which also the errors complained of are sufficiently indicated.

A. Bradshaw, for appellant. The answer is insufficient, in this, that it does not allege an eviction; neither does it say that there is a superior outstanding title in McMullen's heirs, or any title at all in them, but says they have sued for the negroes. Now, if this be sufficient, the law might be converted into an engine of fraud and swindling. Will it be contended that A might sue B for any amount, and by B employing C to sue for the negroes or land, the consideration for which B gave A his note, this would release him from his debt? The mere pleading of suit pending is insufficient. They must plead an eviction or superior outstanding title in a third person. See Fortson v. Caldwell, 17 Tex. 627;Lawrence v. Simonton, 13 Tex. 220; Robinson v. McFadden, Id. 278. In the case of Randon v. Toby, 18 Curtis, 694, the court says, that a breach of warranty of title to personalty without eviction is no defense to an action for the price. Cooper v. Singleton, 19 Tex. 260;Perry v. Rice, 10 Tex. 367;11 How. 493.

My next proposition in support of the demurrer is, that if defendants, at the time of the execution of the note sued upon, had knowledge of the defective title to said negro, then they cannot set up that defect in bar of action, and particularly against a third person; that they are thrown upon the covenants in the warranty. Cooper v. Singleton, 19 Tex. 260;Brock v. Southwick, 10 Tex. 65;Neil v. Pickett, 12 Tex. 137;Jones v. Taylor, 7 Tex. 244;6 Paige, 407.

J. W. Ferris, for the appellees.

SMITH, J.

The appellant instituted this suit May 1, 1858, upon a promissory note purporting to have been executed by the appellees February 20, 1858, for $1,882.93, and payable, at one day, to A. J. Burk or bearer.

The defendants below plead the general denial, and also pleaded a failure of consideration and fraud in the procurement of the note. They state that Burk had previously sold them a lot of negroes with warranty of title, and that they had sold them to different persons with warranty of title; that they each owed him a balance on the said negroes; that Burk held the note of J. A. Hanley for $920, the amount due from J. S. Hanley not stated; that they were informed that the heirs of McMullen claimed to be the owners of the negroes, and that Burk represented to them that he had affected a compromise with said heirs for a release of their claim; that they agreed to take the note of the defendants for what they owed on the purchase to Burk, and would release their claim to the said slaves; that they were thus induced to execute the note in suit for the balance they respectively owed as aforesaid; that the said note of $920, principal and interest, amounting to $1,082.93, was included in said note, and that Burk agreed to destroy the said $920 note; that the said representations were false and fraudulent; that he did not destroy the note of $920, but it is now sued upon, case No. 163, and that he has not procured the said release from the said heirs; that they have instituted suits against defendants' vendees for the slaves, and Burk is confederating with them; that the note was transferred after due and without consideration.

The plaintiff excepted to the answer and amendments, the substance of which is embraced above. The court overruled the said exception. A trial was had, and verdict and judgment were rendered in favor of the appellees, and appellant brings the cause here, and assigns the said ruling of the court as error. And we are of opinion the exceptions of the appellants should have been sustained, and the answer and amendments stricken out. The defendant is permitted to plead as many pleas as he may desire, but each should be complete of itself, or at least the whole answer should present a valid defense to the plaintiff's cause of action, if true.

The defendants below did not in their answer aver that there was a subsisting and superior outstanding title to the said slaves in the said McMullen heirs, nor did they state that they had purchased of Burk without any notice of their claims. These averments we regard as indispensable to the plea of failure of consideration. Brock v. Southwick, 10 Tex. 65;Cooper v. Singleton, 19 Id. 260.

The case of Claborne v. Yeoman, 15 Tex. 44, was a suit upon a note given by the defendant to the administrator of an estate for a certificate sold by order of the county court. He plead failure of consideration, and averred that the sale was void, and that the right to the certificate was in the heirs to the estate. Mr....