York's Adm'r v. Gregg's Adm'x.

• Decision Date: 01 January 1852
• Citation: 9 Tex. 85
• Parties: YORK'S ADM'R v. GREGG'S ADM'X.
• Court: Texas Supreme Court

9 Tex. 85

YORK'S ADM'R

v.GREGG'S ADM'X.

Supreme Court of Texas.

1852.

Matter which would properly constitute a defense to a suit pending cannot be made the subject of an independent suit to restrain the proceedings and annul the cause of action in such former suit, &c., but the objection must be taken before answer to the merits. (Note 17.)

To render a certified copy of a record or document admissible in evidence without other authentication it must be certified by the officer having charge of the original. (Note 18.)

Every document of a public nature which there would be an inconvenience in removing, and which the party has a right to inspect, may be proved by a duly-authenticated copy; and where proof is by a copy, an examined copy, duly made and sworn to by any competent witness, is always admissible.

The records of the proceedings of the ayuntamientos respecting the denouncement and condemnation of lands for failure to perform conditions, &c., properly belong to the archives of the General Land Office, and a certified copy from the same by the clerk of the County Court, in whose office they were placed probably from a mistaken interpretation of the thirty-third section of the act of 1836 to organize inferior courts, (Hart. Dig., art. 260,) is not admissible in evidence without further proof.

Where the defendant in an injunction suit failed to deny an important allegation in the petition, and his administrator afterwards, on the eve of trial, denied under oath all the allegations not previously answered, and especially the one in question, calling for strict proof, it was held that proof by one witness was sufficient.

Where in an executory contract the title proves defective in a part or to an extent not very essential the contract will not in general be rescinded, but performance will be decreed with a ratable deduction of the purchase-money by way of compensation for the deficiency. But where the failure of title extends to that part which formed the principal inducement to the purchase, it seems to be more in consonance with justice that the purchaser should be enabled to rescind the contract altogether. (Note 19.)

But although there may not have been at the time of this contract any intentional misrepresentation made, yet it can scarcely admit of a doubt that the plaintiff was deceived and misled to his prejudice by the representations and promises of the defendant, and his subsequent conduct inconsistent therewith; and it can make little difference in morals or law whether it was the intention of the defendant originally to deceive or whether he subsequently conceived that intention. (Note 20.)

Where the verdict is for a greater amount than is claimed in the petition, although warranted by the proof, it is erroneous, but the excess may be remitted.

Appeal from Burleson. The record disclosed that in September, 1837, the appellant's intestate, York, sold to the intestate of the appellee, Gregg, a league of land and executed his bond to make title; $1,000 of the purchase-money was paid down, and two notes, one for $1,000 and the other for $2,400, were given for the residue, one payable in February and the other in December, 1838. In February, 1844, York brought suit for the collection of these notes. The present suit was instituted in December, 1845, to enjoin the suit for the collection of the notes, to rescind the contract of purchase, and to recover back the purchase-money paid, with interest.

The petition, with its amendments, stated the contract of purchase and sale of the league of land known as the Kuykendall league, made in 1837; described its locality and boundaries, bounded on one side by a league of land known as the Brooks league; that one Oldham was in possession, claiming under the title issued to Brooks of about six hundred and forty acres included in the survey of the Kuykendall league; that York represented to the plaintiff at the time of the purchase that the lines of the two leagues did not conflict; that Oldham had no legal claim to the land of which he was in possession within the survey of the league sold to the plaintiff; that the title to the Brooks league was worthless, for that Brooks had abandoned the country and forfeited his title, and that he promised to dispossess Oldham and place the plaintiff in possession of the entire league; that the land in possession of Oldham was more valuable than any other portion of the league in consequence of its superior quality and the timber upon it, and that it formed the principal inducement to the purchase; that afterwards, in February, 1839, the plaintiff paid to the defendant's attorney, Watrous, $1,600 in Texas promissory notes; that he afterwards learned that Oldham was the owner and in possession of the Brooks league by a valid, legal title; that the surveys conflicted and that the title of Oldham included that part of which he was and is in possession, and which was included in the purchase made by the plaintiff; that he made improvements on the land, but that the defendant took no steps to dispossess Oldham until in February, 1844, when he brought suit against Oldham, long after the plaintiff had abandoned the land and contract; that the representations and promises of the defendant in respect to the title and possession of the land were false and fraudulent, and that the plaintiff was thereby deceived and induced to make the purchase. He tendered his title bond to the defendant and prayed that the suit on the notes be enjoined and the notes canceled; that the contract be rescinded and his purchase-money with interest be refunded; and that the defendant be required to answer on oath all the allegations of the petition, which was sworn to.

At the Spring Term, 1847, the defendant answered as required under oath. He admitted the contract, but alleged that he informed the plaintiff that there was a small conflict in two surveys mentioned; that the plaintiff was on the ground, examined the lines, and bought with a full knowledge of all the facts; that he, the defendant, was informed by the surveyor of Austin's colony, that his league did not interfere with what legally belonged to the Brooks league, and that such is the fact; denied that he made any false representations; alleged that he then believed and still believed that the title to the Brooks league was worthless; denied that Oldham had any legal title to the six hundred and forty acres of the Kuykendall league in question, or that that was more valuable than other portions of the league. He averred that he had offered and was ready on payment of the residue of the purchase-money to execute to the plaintiff a warranty title to the land. He admitted that he was informed by Watrous that he had $1,605 in Texas promissory notes belonging to the plaintiff to pay to him, the defendant, if he would credit it upon the plaintiff's notes at par; that he did not receive or see it, and that Watrous never was his attorney. He denied the charge of fraud and prayed for judgment for the balance of the purchase-money.

At the same term the plaintiff amended and excepted to the answer as evasive. His amendment charged that Watrous and Jones were partners; that the defendant was indebted to them, and that although he did not receive or see the $1,600 placed by the plaintiff in the hands of Watrous, yet he did receive the benefit of it; that it was placed to his credit or paid to one Pettus on the defendant's order; and called on him to answer particularly to these and other charges in the amended petition.

The defendant answered further as to other allegations contained in the original and amended petition, but did not answer as to whether he received the benefit of the $1,600 alleged to have been paid by his attorney.

The cause was continued from term to term until the Fall Term, 1851. In the meantime both the plaintiff and the defendant had died and their administrators been made parties. At that term the plaintiff amended his petition, alleging that in 1839 he tendered to the defendant the residue of the purchase-money due, upon condition that the defendant would make him a good title to and place him in possession of the land, which the defendant refused to receive, alleging as a reason that Oldham was in possession of a part of the land, and that he could not give possession until he should eject him; that he did not take any steps to do so until after he was notified by the plaintiff that he had abandoned the land and considered the contract rescinded; and that the defendant was not at the time of the sale nor has been at any time since able to give a good title or the possession of the land.

The defendant excepted to the original and amended petition on the ground that the matters therein contained could have been set up as a defense to the action on the notes, and also answered by a general denial under oath of the administrator of all the allegations in the original and amended petitions not theretofore answered, and especially of all that related to any payment by the plaintiff to Watrous or Watrous and Jones, of which strict proof was required. The exceptions to the petition were overruled.

The statement of facts embraced a mass of testimony which it is not necessary to recapitulate. It was in proof that there was a conflict between the two leagues of land mentioned of about six hundred and forty acres, of which Oldham was in possession; that that was more valuable than any other part of the league sold to the plaintiff; that it was of superior quality, and had on it water and a valuable cedar brake, and that the balance of the league was badly timbered; that at the time of the contract the parties went upon the land and ascertained the conflict, and that the league purchased by the plaintiff would include that in Oldham's possession on the Brooks league; that Gregg said he would not make the purchase unless he got all the land in the survey of the Kuykendall...