Demaret v. Bennett

Citations

• 29 Tex. 262

Syllabus

<p>A purchaser of land under an executory agreement will not be compelled to accept a doubtful title and pay the purchase-money, unless he has agreed to take such a title as the vendor has, or to take the title at his own risk, with a knowledge of the defects.</p> <p>A purchaser who has gone into possession under a deed with warranty, without any notice of a defect in the title, may resist the payment of the purchase-money, by showing his title is worthless and the existence of a superior outstanding title, by actual ouster, or, what is tantamount to the same, an indisputable superior outstanding title, and that he is liable to be evicted. (Paschal’s Dig., Art. 227, Note 288.)</p> <p>But he must return the possession of the premises and the deed for cancellation.</p> <p>When the purchaser goes into possession under a deed of warranty, and with notice of the defects in the title, there is no equitable grounds upon which ■ he can withold the purchase-money for failure of the title, for the transaction still remains as the vendee understood it to he at the date of the purchase, and he will he forced to await eviction, and then rely upon the covenants in his warranty for the damages arising from the breach of the same.</p> <p>When the title to the most material part of a purchase fails, the vendee has the option to cancel the whole contract, or he may take the part with a perfect title, and cancel or ask a compensation for the residue; but this rests upon fraud or mistake. If there was none, and no other fact to show that he cannot have relief on the warranty for failure of title, he must rely upon his covenant of warranty.</p> <p>Where a party purchased under a special covenant of warranty, and he has not been evicted, he cannot divide the contract, and insist on a cancellation of five-sixths of it, and that he be allowed to risk the residue because of his improvements.</p> <p>Where a party plead an outstanding title in a third party, as a reason for not paying the con