Tarlton v. Daily

Walker, P. J. Com. App. The error complained of, if it be held that the evidence offered by the defendant was admissible under proper pleadings, was, as the rulings of the court is applied to this case, but abstract error, which would not require the reversal of the judgment. The defense set up by the defendant did not contain allegations of facts sufficient to support a judgment founded upon it. Facts not alleged, although proven, cannot form the basis of a decree. Hall v. Jackson, 3 Tex., 309. The defense will be confined to the matters alleged in the answer. The probata must conform to the allegata. Keeble v. Black, 4 Tex., 71. See also Mims v. Mitchell, 1 Tex., 443. Proof without such allegata should be disregarded. Paul v. Perez, 7 Tex., 345. The defendant relied as a defense upon the existence of an incumbrance upon the land to the value of one hun [95] dred dollars at the time of his purchase, and the inability of his vendor to respond to him in damages in case the hen which thus incumbered it should be foreclosed. These facts, of themselves, are insignificant as a bar to the plaintiff’s right to recover on the note sued on. The facts thus alleged imply that the defendant, at the timé of his purchase, was chargeable with constructive notice of the existence of the hen of the judgment in the justice’s court; for there could not exist such a hen unless the judgment creating it were duly registered, and a certified copy thereof recorded in the office of the district clerk of the county where the judgment was rendered. Pasch. Dig., art. 6342. The defendant purchased, according to legitimate inferences to be drawn from the facts alleged by him, with the records of the county informing him of the existence of the judgment hen referred to; and if he was in fact ignorant thereof, and indeed had no notice or knowledge of such hen, he does not in his answer so state. He does not pretend, or'intimate in his answer, that his vendor was guilty of any fraud or misrepresentation, or- in any wise improperly superinduced his want of knowledge, if he was, in fact, ignorant concerning the hen in question. Where the vendee gives his note for the purchase money, and takes a deed with general warranty, and there is no fraud on the part of the vendor, nor ignorance on the part of the vendee as to a defect in the title, the vendee cannot successfully resist the payment of the note for the purchase money, unless he has been evicted. Proof of a paramount title outstanding in a third person is no defense. Brock v. Southwick, 10 Tex., 68. And where the defense is that the vendor had previously sold part of the same property to another person, the plea should state distinctly what part of the property was so sold, and to whom sold, and, it would seem, whether such prior sale had been recorded. Woodward v. Rogers, 20 [96] Tex., 178. The same principle is also applied to a defense set up, under similar circumstances, alleging that a suit has been commenced against the defendant for a part of the land by a third person; the plea is bad without averring that such person had a superior title. Portson v. Caldwell, 17 Tex., 628; Perry v. Rice, 10 Tex:, 373. A vendee who resists the payment of the purchase money on the ground that the vendor has failed to convey according to agreement, should aver such facts as show the vendor to be in default. Perry v. Rice, supra. It is plain that the defense set up failed to meet the requirements of the principles and rules of law which are laid down by our supreme court as governing the defense of a partial failure of consideration in a purchase-money note given for land which has been conveyed to the maker of it. It follows from this proposition, that as the answer did not furnish a basis for any verdict or judgment in favor of the defendant, no injury could have resulted to him from the supposed error in excluding the evidence. There is no statement of facts in the record, and it is not wholly free from doubt, that, for that reason alone, this court should not review the correctness of the mh'ng complained of. It is true that the rule of practice, under which the appellate courts decline to review errors in the exclusion of testimony, for this reason, has its exceptions. See Galbreath v. Templeton, 20 Tex., 46; Dalby v. Booth, 16 Tex., 56; Armstrong v. Nixon, 16 Tex., 615. Nevertheless, upon the facts of this case, it may be questioned whether the appellants may confidently claim to bring this case clearly within those exceptions. See Smith v. Garza, 15 Tex., 158. It is not foreign to reasonable conjecture that a statement of the facts adduced in evidence would show that the excluded testimony, if it had been admitted, would not have changed the result. But, giving the defendant “the benefit of the doubt,” under the rule laid down in Fox v. [97] Sturm, 21 Tex., 407, that, “when a bill of exceptions discloses facts enough to show that competent testimony has been excluded by the court, it is sufficient for the action of the courts, without a statement of facts,” still we find that the spirit of the rule, and the reason on which the exceptions rest, require the conclusion that the revision will not be made unless the relevancy and materiality of the testimony is shown by the pleadings. Fox v. Sturm, supra. We conclude, therefore, under the pleadings of the defendant, that it is not important to determine whether the court erred in its opinion or not, in excluding the testimony for the reason which was assigned by the judge; and that the error, if such it was, was merely abstract, and was one of which the defendant cannot complain as being to his injury. We are of the opinion that the judgment ought to be affirmed. Affirmed. [Opinion delivered April 25, 1881.]