Nass v. Chadwick , 76 Tex. 572 ( 1890 )

HBHEY, Associate Justice.

This suit was brought by appellee to recover judgment upon three promissory notes, and to foreclose a vendor’s lien upon a tract of land conveyed by him to defendant by a general war- ■ ranty deed. The land was described in an exhibit attached to the petition “as a part of the Jesse Clary headright in Waller County, conveyed by W. S. Day to W. T. Tollard and by Tollard to Dillard, beginning, etc. [reciting the boundaries], and containing an area of 273-fV acres more or less, not to include a tract of about fifty acres sold out of said land to -. This tract of land the part of two tracts conveyed to Chadwick by M. M. Felder as trustee, and described in his deed dated April 20, 1870.”

The defendant pleaded a general denial and the statute of limitations of four years to one of the notes, and specially that plaintiff represented that the tract sold by him contained 273fV acres, less fifty acres, which defendant believing purchased the tract, paying therefor $1200, of which $300 were paid in cash, the balance being represented by notes sued on; that defendant afterwards discovered that some of the land described in the deed to him was owned by other persons, whom he named, and that plaintiff did not own, and his deed did not convey, more than 94t8A acres; that he believed he was purchasing certain timbered land, for which he had a special use in operating a steam gin and mill; that the land conveyed by the deed was poor, and not worth exceeding $2 per acre.

The jury returned a verdict in favor of plaintiff for two of the notes sued upon, and the court entered judgment upon the verdict foreclosing the vendor’s lien by the same description that was given of the land in plaintiff’s petition, without excepting the fifty acres.

It is complained that the court erred “in accepting the verdict as returned and in entering the judgment as recorded.”

We can see no objection to the verdict, nor to the judgment, except that it includes in the foreclosure fifty acres of land that was excepted from the conveyance to defendant. It is not shown how appellant can be prejudiced by this. He did not make the particular objection in the District Court. If he had called the attention of that court to the error in the judgment, it would doubtless have been corrected.

Ho error was committed in overruling defendant’s demurrer, nor in permitting plaintiff to read in evidence his deed made to the defendant. It was correct to exclude evidence offered by defendant for the purpose of showing his reason for desiring to purchase the land, and “to prove the value of the land to which plaintiff could make undisputed title for the timber thereon.”

Ho other errors are assigned, and the judgment is affirmed.

Affirmed.

Delivered March 18, 1890.