James H. Holt vs. Lewis C. Clemmons, 3 Tex. 423

Mr. Justice Lipscomb delivered the opinion of the court. There is no bill of exceptions in this case, and if the judgment can be reversed, it is on the ground that the court below •erred in not granting a new trial on the motion of the appellant, upon the ground that the verdict was contrary to evidence.

The defense set up against the payment of the notes .sued on is, that they were given in consideration of the purchase of two hundred acres of land sold by the plaintiff below to the appellant; that he had represented himself to be the owner of the land, and had given bond to make a good title •to the appellant on payment of the purchase money; that the ■title was not in him, the appellee, but in the heirs of Hensley; and if not in them, that the appellee had sold the same land to one Burgess Bolin, since dead, and given him a bond •for the same.

The evidence in support of the title being in the heirs of Hensley was certain proceedings had in the district court of Washington county, wherein the appellee was plaintiff, and Walter 0. Cooper, administrator of Hensley, defendant, which proceedings were in 1841; in which the plaintiff ashed the court to decree a title in his favor, to be made by the administrator in conformity with the conditions of a bond made by Hensley to him in 1837, to make title to a certain tract of land described in the petition; which proceedings resulted in a decree and title by Cooper, as administrator of Hensley.

That the land sold by the appellee, Clemmons, to the appellant, is a part of the land so conveyed by Cooper to the appellee. There was evidence tending to prove Holt in possession of the land, and none of an ouster, or any outstanding title in any one else; and there was no evidence of any facts from which the jury could have inferred fraud in the concealment of any facts as to the character of title of the appellee. Indeed, his title being a matter of record under the decree, the appellant must be held to have had notice.

Holt made no offer for are-scission of the purchase and restoration of possession to Clem-mons. There was no exception to the charge of the judge. Under such circumstances, was it not a matter of inference fairly to be deduced by the jury, that Holt purchased with his eyes open, and was willing to risk Clemmons’ title against any title that might be set up by the heirs of Hensley ? If so, on this point the verdict was not contrary to evidence.

This would dispense with the necessity of a decision from the court on the point raised by the appellant’s counsel, that the proceedings did not divest the heirs of Hensley of their title.

But admitting it was necessary to pass upon the effect of a decree when the administrator, and not the heirs, was made party, yet we are bound to give credit to that decree, so far as it affords evidence ■of the facts it assumes to rest upon, and it purports to be founded on a bond for title made by Hensley; and although the principle of law may be true, that at law title vests in the heir by the death of the ancestor, yet it would vest with the incumbent obligation to make title, and a court of chancery would enforce the obligation, and would restrain the heirs from disturbing the possession of Clemmons and those claiming under him.

It was but a fair inference for the jury to make that Iiolt knew all this, and was willing to take the risk of any trouble that the heirs might give him, well knowing that his title would be sustained. The other ground relied on to show the incapacity of Clem-mons to make title — his previous sale of the same land — on examination will be found equally unsubstantial as a defense.

A bond was given in evidence from Clemmons to Bolin for title by the appellant, and this bond was in possession of the obligor (if I correctly understand the statement of facts), and produced by him on the trial, under a notice to produce it, which came from the appellant. The reasonable presumption arising from the possession is, that it had been cancelled.

This, taken with the evidence of a witness that Holt told him he had taken the place of Bolin, and that the notes were at that time given, and the notes of Bolin to be cancelled, left the conclusion that the sale to Bolin had been 'cancelled, and that Holt knew of the fact of such rescission of the contract, and was satisfied with the validity of the rescission. In the absence of proof, the jury were bound to presume that it had been done in a legal way.

We are not prepared to say that the verdict was contrary to evidence, and even if it was doubtful whether it was sufficient to sustain the verdict, we would not on that ground be authorized to say the court below erred in not setting aside the verdict. If not without evidence, or contrary to evidence, we would not distrust the finding of the jury. The judgment is affirmed. ’Note.— Mr. Justice Wheeler, being unavoidably absent, did not participate in the decision of this and the subsequent cases reported in this volume.— REPORTER.