Luckie v. McGlasson

Roberts, J. The only question in this case, is, was the plea of -failure of consideration, a defence to the action on the note given as the purchase money of the land sold to appellant, by Tinsley and McKean, assignors of McGlasson ? It alleges that, at the time of the sale, said Tinsley and McKean “fraudulently and falsely represented to this defendant, that they had a valid title to said land; and they stipulated with this defendant for a deed in fee simple, with a full “warranty of title, against all persons whatsoever;” that they had no title, and have acquired none since; and that the title to said land is in John Davis. The defects of this plea are, 1st. It does not state that the representations, however false and fraudulent, were relied on in the purchase, and did actually deceive the defendant. (Moreland v. Atchison, 19 Tex. Rep. 303.) 2d. It does not state such facts, as certainly put Tinsley and McKean in default, in not making a title. The allegations leave it uncertain, whether a deed was made or not. And if they be construed to allege that a deed was not made, but only an obligation, with certain “stipulations” for title, then those stipulations are not set forth, so as to show under what terms, conditions and limitations, as to time, payments and the like, the contract of sale was made. Such stipulations should have been stated, so that it might appear [285] that their non-performance, or the inability to perform them, would put said Tinsley and McKean in default. (Cooper v. Singleton, 19 Tex. Kep. 260; Lawrence v. Simonton, 13 Id. 220.) The plea is therefore insufficient. Judgment affirmed.