Littlefield v. Tinsley

Wheeler, Ch. J. It appears that the defendant’s evidence, [260] offered to prove his defence of want of title in the plaintiff, was rejected, on the ground, that there was no foundation for the. admission of the evidence laid in the answer. But the force of the objection is not perceived, nor does the brief of counsel for the appellee, indicate what particular allegation was wanting to let in the proof. The contract was executory; and in that case, it is well settled, that defect of title in the vendor will entitle the vendee to relief, unless it be proved by the vendor, that the defect of title was known at the sale, and it was understood that the vendee should take such title as the vendor could give. (Lawrence v. Simonton, 13 Tex. Rep. 220; Hays v. Bonner, 14 Id. 629; Cooper v. Singleton, 19 Id. 260; Taylor v. Johnston, Id. 351; Taul v. Bradford, 20 Id. 261; Fisk v. Miller, Id. 572; Hurt v. Blackburn, Id. 601.) We are of opinion, that the court erred in excluding the evidence offered by the defendant, in support, of his plea of want of title in the plaintiff; for which the judgment is reversed, and the cause remanded. Reversed and remanded.