House v. Kendall

Citations

• 55 Tex. 40
• 1881 Tex. LEXIS 78

Syllabus

<p>1. Vendor and vendee.—Where there is a total failure of title in the vendors, the vendee may, if the contract be executory and unfulfilled, refuse to perform it and reclaim any portion of the purchase money which he may have advanced. The same rule applies in an action against a oo-executor, who, acting alone, has agreed to convey land to which the estate had no title, and who has received a - portion of the purchase money; the will requesting the executors to act jointly in the settlement of the estate.</p> <p>3. Same — Pleading.— The fact that a co-executor, in such case, executed the contract to convey in the qualified character of co-executor, does not relieve him from the personal obligation to refund money obtained without consideration; nor would his special plea under oath denying that the contract to convey bound him individually, require of the plaintiff a replication in order to admit evidence of the issue involved, when the petition alleged the facts on which the liability was claimed.</p>