Rhode v. Alley

• Decision Date: 01 January 1864
• Citation: 27 Tex. 443
• Parties: DAVID RHODE v. WILLIAM ALLEY AND OTHERS.
• Court: Texas Supreme Court

27 Tex. 443

DAVID RHODE

v.WILLIAM ALLEY AND OTHERS.

Supreme Court of Texas.

1864.

When an indorsement without date appears upon a promissory note, the presumption of law is that it was made before the maturity of the note, and a party affirming otherwise assumes the burden of proof.

A purchaser of land who has received a deed with special warranty may show, in defense to a suit for the purchase money, or in his action for a rescission of the contract, that a fraud in respect to the title was practiced upon him.

When a vendee of land accepts a quit-claim deed, or a deed with special warranty, the presumption of law ordinarily is, that he acts upon his own judgment and knowledge of the title; and in that case he cannot be heard to complain that he has not acquired a perfect title.

But when, in the negotiations preliminary to the execution of the contract, the vendee stipulated for a perfect title, but afterwards is induced by the false or fraudulent representations of the vendor to accept a quit-claim, or special warranty deed, in the belief that he is thereby acquiring a perfect title, he will be permitted to show the deceit and will be relieved against the contract.

If the vendee, induced as aforesaid to accept a quit-claim, or special warranty deed, be sued upon his note for the purchase money by an assignee of the note, he may make his vendor a party to the suit and obtain judgment against him for such an amount as the plaintiff recovers upon the note, and also have a rescission of the contract and an adjustment of the equities as between him and his vendor, arising out of permanent improvements, use and occupation, etc.

APPEAL from Lavaca. Tried below before the Hon. Fielding Jones.

William Alley, one of the appellees, instituted this suit on the 22d of January, 1859, against Rhode, the appellant, on his promissory note for two thousand, five hundred dollars, dated August 21, 1857, due January 1, 1859, payable to James C. Loe or order, and by him assigned without recourse, by an indorsement without date, to the plaintiff Alley. The note expressed upon its face that it was given “for value received in the purchase of three hundred and four acres of land off of the Morris and Mixon leagues.”

The defendant by his answer made Loe and his wife, from whom he had received a deed with special warranty for the land, parties to the suit, alleging against them the fraudulent representations sufficiently detailed in the opinion of the court, and charging the plaintiff with notice and collusion. He prayed for injunction, tendered back to Loe and wife their deed, and asked for a rescission of the contract and for general relief as against them.

Loe and wife denied all fraud or deceit, and alleged that Rhode well knew the condition of the title at the time of and prior to the sale, and that he acted upon his own knowledge and the advice of the witness Dowling with regard to the title.

The plaintiff, by amendment, alleged that he traded for the note before its maturity and without notice of the matters set up by Rhode in his answer; and he adopted the matters and things set up by Loe and wife.

There was no evidence of the time when the note was indorsed by Loe, nor of any notice to Alley of the manner in which Rhode had been induced to accept the deed with special warranty. The other evidence is sufficiently indicated in the opinion.

The court charged the jury that unless they believed from the evidence that Alley had full knowledge and notice of the facts existing between Loe and Rhode, they should find for the plaintiff; and as between Rhode and Loe, they would inquire and find whether or not the note was made by Rhode to Loe with full knowledge of the condition of the title, or whether there was fraud practiced upon Rhode by Loe in procuring the note or executing the deed.

The jury returned a verdict for the plaintiff and also in favor of Loe and wife. Judgment accordingly, new trial refused, and Rhode appealed.

Tevis, Allen & Hale, for the appellant.

Harcourt & Robson, for the appellees.

BELL, J.

We are of opinion that the court below did not err in the rendition of judgment in favor of the plaintiff below, William Alley. The legal presumption is that the note sued on was transferred to Alley before maturity; he so alleged in his amended petition, and if the fact were otherwise, the proof of it devolved upon the defendant. The statement of facts shows that the plaintiff, Alley, read the note in...