Terry v. Barbour

STEPHENS, Associate Justice. August 28,1889, by general warranty deed, duly acknowledged at Louisville, Kentucky, appellee, Mary A. Barbour, joined by her husband, John M. Barbour, since deceased, conveyed to appellant certain lands therein described as follows: “Four separate tracts of land, containing 320 acres each, and being part of the , lands originally owned by the Texas Emigration and Land Company, and being survey number 1207 in Young County, and surveys numbers 1208, 1209, and 1210 in Stephens County (formerly Buchanan County), in the State of Texas”, for which tracts of land patents were duly issued to Thomas Coleman, assignee of the Texas Emigration and Land Company.” There was no covenant or other affirmation in the deed of the quantity. These lands were the separate property of appellee, and were sold as such to appellant; the deed on its face showing that they descended to her from said Coleman, deceased. The sale was negotiated by John M. Barbour, at a specified price per acre, who represented to appellant that each section contained at least 320 acres; that he had had the lands run out several years before the trade, by one of the finest surveyors in the State, and that there was an excess of 40 or 50 acres. Relying upon these representations, appellant did not have the land surveyed, but closed the trade upon a basis which excluded both excess and deficiency. The deed was prepared and sent to appellee at her home in Louisville, Kentucky, where it was executed by her without any knowledge of the preceding representations of her husband. It was shown by the report of the surveyor who ran out these surveys, pending the suit, that, owing to conflicts with other surveys, there was a deficiency of from about 55 to 125 acres, though the survey previously made at the instance of Barbour showed a small excess, as represented by him to appellant. A part of the purchase money was paid in ignorance of the deficiency, and the notes given for the balance were paid after they had been assigned. This suit was brought by attachment against appellee as a nonresident, to require her to make good the alleged deficiency, on the ground that *476 the land had been bought by the acre upon the faith of the representations of appellee’s husband, as above set forth. No mistake was alleged, and no actual fraud was proven. Delivered December 13, 1893. Conclusions of Law. — Upon the authority of Etheridge v. Price, 73 Texas, 597, we conclude that this judgment should be affirmed. See also, Moore v. Hazlewood, 67 Texas, 624; Wheeler v. Boyd, 69 Texas, 293; Bellamy v. McCarthy, 75 Texas, 293; Weir v. McGee, 25 Texas Supp., 30; Daughtrey v. Knolle, 44 Texas, 450; Smith v. Fly, 24 Texas, 345; Wadkins v. Watson, 24 S. W. Rep., 385, decided by our Supreme Court, December, 1893. Affirmed.