Morris v. Runnells

• Decision Date: 01 January 1854
• Citation: 12 Tex. 175
• Parties: W. G. L. MORRIS v. W. RUNNELLS.
• Court: Texas Supreme Court

12 Tex. 175

W. G. L. MORRIS

v.W. RUNNELLS.

Supreme Court of Texas.

1854.

It seems that the provision of Article 667, which requires actions for the recovery of land and damages thereto, to be brought in the county where the land lies, is a privilege of the defendant, and, where the action is brought in the county where the defendant resides, is waived by a failure to object at the proper time. (Note 40.)

Where the plaintiff sued the defendant for the rescission of an executed contract for the sale of land, and indorsed the petition with a notice that the action was brought as well to try the title as for damages, this Court said, in answer to an objection that the suit was not brought in the county where the land lay, that the suit could not be said to have been brought for the recovery of land or damages thereto, within the intent of the exception in Article 667, and that the action was well brought in the county where the defendant resided. (Note 41.)

Where the plaintiff sued to rescind an executed contract for the sale of land on the ground that by certain fraudulent representations, the defendant had induced him to accept, in payment for the land, a cotton receipt of one Tindall, of Aberdeen, Mississippi, promising to pay the proceeds of eleven bales of cotton, which, it was in effect averred, was valueless to the plaintiff, and the defendant answered by alleging that he paid the price of the land in money, and delivered the cotton receipt to the plaintiff for collection, this Court said: The defendant, by expressly admitting in his answer the giving of the receipt in question, took upon himself the burden of proof as to the purpose for which he alleged it to have been delivered to the plaintiff.

Bills of exception which refer to documents and depositions which are not contained in the record, and the substance of which is not stated, cannot be considered.

It seems that the admission of improper testimony is not sufficient ground to reverse a judgment, where the case is made out independently of the evidence objected to.

Error from Rusk. The appellee sued the appellant in Rusk county, that being the county of the defendant's residence, for the rescission of an executed contract for the sale of six hundred and forty acres of land in Fannin county, on the ground that the sale was procured by fraud. The petition was indorsed with notice that the action was brought to try the title, &c. It seems that the action was brought under the 6th exception of Article 667. No objection to the jurisdiction was taken below. It was alleged that the defendant, by certain fraudulent representations, induced the plaintiff to accept, in payment for the land, a certain cotton receipt of one Tindall, of Aberdeen, Mississippi, promising to pay the proceeds of eleven bales of cotton, which it was, in effect, averred was valueless to the plaintiff. The defendant first answered by a general denial; but afterwards amended his answer, admitting the giving of the cotton receipt to the plaintiff, but alleging that it was given to him for collection, and that he paid in money for the land. It was in evidence that the defendant had stated in a conversation that he had traded to the plaintiff a cotton receipt upon one Tindall, of Aberdeen, Mississippi, for eleven bales of cotton, for six hundred and forty acres of land in Fannin county, and that the receipt was worthless. The cotton receipt was admitted in evidence, without proof of its execution, the defendant objecting. The Court also permitted to go to the jury, the defendant objecting, a protest made upon a copy of the...