Dodd & Co. v. Arnold

Donley, J. —The first point in the charge is hypothetically submitted to the jury, and is erroneous. It is not alleged in any pleading in the cause that appellant intended that the propei’ty in the mule and buggy should pass to Mez’ [101] chant and brother in any event, nor is there any evidence to that point in the record. (Hopton v. Dean, 4 Tex., 455; McGreal v. Wilson, 9 Tex., 428; Lee v. Hamilton, 12 Tex., 418; Earle v. Thomas, 14 Tex., 592; Andrews v. Southwick, 20 Tex., 118.) The remainder of the charge, it is conceived, is against law, and cannot he sustained. The good faith of the defendant cannot invest him with the title to the property if his vendor had no title. The owner of property cannot he deprived of it except by his consent. “ The universal and fundamental principle of our law is, that no man can he divested of his property without his own consent, and consequently that even the honest purchaser under a defective title cannot hold against the true proprietor.” (Salters v. Everett, 20 Wend., 275; 2 Kent Com., 324; Wheelright v. Defoyster, 1 Johns., 480; Dawes v. Baldwin, 8 Mass., 521.) The judgment of the district court is reversed and the cause Remanded.