Atchison v. Williams

Citations

• 28 Tex. 599

Syllabus

<p>The appellee brought suit against the appellant on the obligation of the latter to deliver a three hundred and twenty acre land certificate. The defendant plead that he had discharged the obligation by executing to the plaintiff a transfer, of a lost three hundred and twenty acre certificate, which transfer was accepted by the plaintiff, with the understanding that a duplicate was to be procured on the proper showing to the commissioner of the general land office; that the defendant took the proper steps on his part to obtain the duplicate, but before it could be got the plaintiff fled the country, without making the oath of ownership, as required by law; and defendant prayed that if he be held liable to plaintiff on the obligation sued on, his said transfer be canceled. There was evidence tending to support the defense, but the court below, in its charge to the jury, treated the issue thus presented by the defendant as altogether irrelevant: Held, that the defense, if established by evidence, was good, and should have been left to the jury; that the plaintiff should not have been permitted to recover on the obligation and at the same time to retain the transfer, nor be allowed, while he withheld the transfer, to deny that it was a satisfaction of the obligation; and consequently that the charge of the court was erroneous.</p>