Heirs of Reddin v. Smith

Citations

• 65 Tex. 26
• 1885 Tex. LEXIS 305

Syllabus

<p>1. Practice—Evidence—Rescission — Interest.— A parol sale of the lands in controversy was made in 1859; the vendee paid a yoke of oxen on the purchase, made valuable improvements, and in 1863 paid §100 on the purchase. He died, and his widow married again in 1868. The wife and her second husband leased the premises to the father of defendants in December, 1868; the land was sold under execution against the original vendor, and the purchaser sold to the lessee ; the wife and children of the original vendee brought suit against the heirs of the lessee. Held:</p> <p>(1) The second husband of the vendee’s wife, though separated from her, was, as they had not been divorced, a proper party plaintiff.</p> <p>(2) As the lessee was dead and the suit was against bis heirs, plaintiffs could not testify to conversations and transactions with him, but if such testimony did not injure defendants, it was no ground for reversal.</p> <p>(3) The rights of the wife could not be affected by declarations of her second husband, unless they were made in her presence. (8 Tex., 178.)</p> <p>(4) The acts and declarations of the original vendor could not affect the rights of' his vendee. He had waived time as an essential feature of the original contract, and could not rescind that contract without first giving his vendee, or his heirs, distinct notice of his purpose to require the purchase money within some reasonable period.</p> <p>(5) A bill of exceptions to the exclusion of testimony must show what the testimony would have been, or what was proposed to be proved by the witness.</p> <p>(6) In the absence of proof of the interest to be paid by the vendee on the balance of the purchase money, the jury was properly instructed to calculate interest, at 8 per cent.</p>