
    York's Adm'r v. Gregg's Adm'x.
    Mali or which \xmhl properly constitute a defense to a suit pending cannot be made the subject of an indepoiidentsuit to restrain the proceedings and annul the cause of action in such former suit.&e . but the objection must he taken before answer to the merits. (Note 17.)
    To render a eeriilied copy of a record or document admissible in evidence without other uuthent million it must* he certified hv the officer having charge of the original. (Note 18.)
    livery dominion, of a public, nature which there would be an inconvenience in removing, and which the juiny has a right to inspect, may be proved by a duly-authenticated copy; and where proot is by a copy, an examined copy, duly made and sworn to by any competent willies^', is always admissible.
    The record.-, of the proceedings of the ayuntamientos respecting the denouncement and condemnation of lands for failure to perform conditions, <fce., properly belong to the archives of the tien.'ial Land Oltieo. and a certified copy from the same by the clerk of the County Com i iiwhose office they wore placed probably from a mistaken interpretation of the thiiiv-thiid >- cot ion of the act of 18'5(> to organize inferior courts, (Hart. Dig., art. 2(50.) is not admi' — ibb- in evidence without further proot.
    "Where the fondant in an injunction suit lulled to deny an important allegation in the petition. and l.h* administrator afterwards, on the eve oí trial, denied under oath all the allegation- m- kowh>us]y answered, and especially the one in question, calling for strict proof, if wib hold that proof by one. witness was suandent.
    When* in an *« ,"oiii.»ry contract the title proves defective in a part or to an extent not very os-ci.t-al iho contraed- will not in general be rescinded, but performance will be decreed whli a ridable deduetion of tho'pur<-nase-money by wav of compensation for (he defiesouoy. Hut where the- failure oflitle extends to that part which formed the principal induee isoit iu ihe purchase, it seems to be more in eonsouanee with justice that the pur-ehasi*’1 dd be enabled to rescind the contract altogether. (Note li).)
    But altho'iL-i i: ere may not have, been at- the time of this contract any intentional misrepresentation m id<*. yet it can scarcely admit of a doubt that the plaintiff was deceived and misled to his prejudice by the representations and promises of the defendant, and his subseqoom conduct, inconsistent therewith: and it can in ike lutle difference in morals or law who1 her it was the intention of the defendant originally to deceive or whether he subsequence conceived that intention. (Note 20.)
    Where the \< r-iict is for a greater amount than is claimed in the petition, although warranted by the prooi, it is erroneous, but the excess may be remitted.
    Appeal from Burleson. The record disclosed that in September, 1S37, the .appellant's i.itestale, York, sold to the intestate of the appellee, Gregg, a league of land and executed his bond to make title; $1,000 of tluv purchase-money was paid down, and two notes, one for $1,000 and the oilier for ■$¿,-100. were given for the residue, one payable in February and the other in 3)eeeml>cr, iu:58. Iu February, 1844, York brought suit for the collection of these notes. 'Liu; present suit was instituted in December1, 1845, to enjoin the suit for (lie rolled ion of the notes, to rescind the contract of purchase, and to recover back l he. purchase-money paid, with interest.
    The petition, with its amendments, stated the contract of purchase and sale •of Ihe league1 of land known as the Kuykendall league, made in 1887 ; described its locality and boundaries, bounded on one side by a league of land known as the Brooks league ; that one Oldham was in possession, claiming under the title issued to Brooks of about six hundred and forty acres inoluded'ui the survey of the Kuykendall league; that York represented to the plaintiff at the time, of tin' purchase that the lines of the two leagues did not conflict; that Oldham luid no legal claim to the land of which he was in possession within the survey of the league sold to the plaintiff; that the title to the Brooks league was worthless, for that Brooks had abandoned the'country and forfeited his title, and that lie promised to dispossess Oldham and place, the plaintiff in possession of the entire league; that the land in possession of Oldham was more valuable than any other portion of (lie league in conscqnenee of its superior quality and the timber upon it, and that it. formed tiie principal inducement to the purchase; that, afterwards, in February, 1839, the plaintiff'paid to the defendant’s attorney, Watrous, $1,090 in Texas promissoiy notes; that he afterwards learned that Oldham was (he. owner and in possession of tiie Brooks ieagir' by a valid, legal title; that the. surveys conflicted and that the title of Oldham included that part of which he. was and is in possession, and which was included in the purchase made by the plaintiff'; that he made improvements on the land, but that the defendant took no steps to dispossess Oldham until in February, 1S4-1, when ho brought suit against Oldham, long after Lite plaintiff' had abandoned tiie laud and contract; that the representations and promises of tiie defendant in respect to the title and possession of the land were false and fraudulent, and that the plaintiff was thereby deceived and induced to make the purchase. He tendered his title bond to the defendant and prayed that the suit, on tiie notes bo enjoined and the notes canceled; that the contract he rescinded and his purchase-money with interest he refunded; and that the defendant be required to answer on oatli all the allegations of the petition, which was sworn to.
    At the Spring Term, 1817, tiie defendant answered as required under .oath. He admitted tiie contract, hut alleged that lie informed tiie plaintiff that there was a small conflict in two surveys mentioned ; that tiie plaintiff was on the ground, examined tiie lint's, and bought witli a full knowledge of all the facts; that he, the defendant, was informed hy tiie surveyor of Austin’s colony, that his league did not interfere with what legally belonged to the Brooks league, and that such is tiie fact; denied that lie made any false representations; alleged that lie then believed and still believed that tiie title to the Brooks league wits worthless; denied that Oldham had any legal title to the six hundred and forty acres of tiie Kuykendall league in question, or that that was more valuable'than other portion's, of the league. lie averred that lie had offered and was ready on payment of tiie residue of tiie purchase-money to execute to the plaintiff a warranty title to tiie land. He admitted that he was informed by "Watrous that lie had $1,603 in Texas promissory notes belonging to the plaintiff to pay to him, the defendant, if lie would credit it upon tiie plaintiff’s notes at par; that he did not receive or see it, and that Watrous never was his attorney. He denied the charge of fraud and prayed for judgment for the balance of tiie purchase-money.
    At tiie same term tiie plaintiff amended and excepted to the answer as evasive. His amendment charged that Watrous and Jones were partners; that the defendant was indebted to them, and that although lie did not- receive or see the $1,600 placed by the' plaintiff in the hands of Watrous, yet lie did receive tiie benefit of it; that it was placed to his credit or paid to one Pettus on tiie defendant’s order; and. called on him to answer particularly to these and other charges in the amended petition.
    The defendant answered further as to other allegations contained in the original and amended petition, hut did not answer as to whether he received the benefit of tiie $1,000 alleged to have been paid by his attorney.
    The cause, was continued from term to term until tiie Fall Term, 1851. In tiie meantime both the plaintiff and the defendant had died and their administrators been made parties. At that term tiie plaintiff amended his petition, alleging that in 1S39 lie tendered to the defendant tiie residue of tiie purchase-money due, upon condition that the defendant would make him a good title to and place him in possession of the land, which the defendant refused to receive, alleging as a reason that Oldham was-in possession of a part of tiie land,'and that lie could not give possession until he should eject him; that he did not take any steps to do so until after he was notified hy the plaintiff that lie had abandoned the land and considered the contract rescinded; and that the defendant was not at the time, of the sale nor has been at any time since able to give a good title or the possession of the land.
    The defendant, excepted to the original and amended petition on the ground that the matters therein contained could have been sot up as a defense to the action on the notes, and also answered ,by a general denial under oath of the administrator of all the allegations in the original and amended petitions not theretofore answered, and especially of all tliat related to any payment by the plaintiff to Watrous or Watrous and .Jones, of which strict proof was required. The exceptions to the petition were overruled.
    The statement of facts embraced a mass of testimony which it is not necessary to recapitulate. It was in proof that there was a conflict between the two leagues of land mentioned of about six hundred and forty acres, of which Oldham was in possession; that that was more valuable than any other part of the, league sold to the plaintiff; that it was of superior quality, and had on it water and a. valuable cedar brake, and that the balance of the league was badly timbered; that at the time of the contract the parties went upon the land'and ascertained the conflict, and that the league purchased by the plaiu-tiffwould include that in Oldham’s possession on the Brooks league; that Greg,aji said lie would not make the purchase unless lie got all the land in the survey of the Kuykendall league, including the conflict; that York told him that lie knew the title to the Brooks league to be worthless, and promised that-he would dispossess Oldham and place him in possession ; that it was understood that the part of the league in Oldham’s possession was the main inducement to the purchase; that Gregg improved and cultivated a part of the land, immediately after the purchase', but afterwards abandoned it; that no steps were taken by York to dispossess Oldham until after the plaintiff liad abandoned the land, when, in 18-14, .he brought a suit against Oldham for the, land, which is still pending, and that Oldham has continued in possession; that in 18-10 the plaintiff proffered to pay the defendant the balance of the purchase-money then due if lie would make a good title and put tiie plaintiff in possession of the part occupied by Oldham, which the defendant declined to do. It was proved that $l,089‘were paid at the time of the purchase, and that $1,603 in Texas promissory notes, the value of which was proved, were paid to the attorney of the defendant in 1839. The title to the Brooks league, under which Oldham was in possession, was given in evidence, and was a grant of a league of land to Bluford Brooks as a'colonist, made ,on the 10th day of August, 18-g4. The title to the Kuykendall league, granted by the commissioner Arciniega, in May, 1831, was also given in evidence, and the conflict of boundaries proved. The defendant, to show the invalidity of the former title, offered in evidence a copy of the record of the proceedings of the ayuntamiento of the municipality of Austin, certified under the seal of office of the clerk of the County Court of Austin county. The paper offered purported to be a copy of proceedings before the ayuntamiento on the 15th day of December, 1830, and appeared to be the same given in evidence iu the case of Holloman v. Peebles, (described in the report of that case, 1 Tex. R., 675,) by which it appeared to have been determined that Bluford Brooks having received a grant of a league of land by title, dated 10th August, 1824, and having abandoned the country iu 1825, ‘‘the laud is therefore declared vacant and the title null and void.” To the introduction of this evidence the plaintiff objected on two grounds: 1st, that it was not certified by the proper officer; 2d, that it was not admissible under the pleadings. The court sustained the objection, and the defendant excepted. The title bond given by the defendant to the plaintiff was ■conditioned to make title on payment of the purchase-money.
    There was a verdict for the plaintiff, finding the averments of the petition true, and the amount of the purchase-money paid and interest to he $3,806, upon which the court adjudged the contract rescinded, and gave judgment for the plaintiff; and the defendant having applied for a new trial, which was refused, appealed.
    
      J. Sctyles, for appellant.
    
      A. M, Lewis and Webb %■ Oldham, for appellees.
    LipsCOMB, J., did not sit in this case.
   Wheeler, J.

The grounds relied on for reversing the judgment are :

1st. The overruling of the exceptions to the petition.
2d. The excluding of the evidence offered by the defendant.
3d. The refusal of a new trial.

1. Had the objection now insisted on, that the matters embraced in the petition in this case ought to have been pleaded to the suit upon the notes been taken in the first instance, it ought to have been sustained, for there was no necessity in making two suits of' what related to the same subject-matter and might as well have been litigated in one. But this objection was not taken until years after the defendant had answered to the merits. It is an objection not going to tlie merits but to the form of the proceeding, and ought therefore to have been taken in the first instance. If even it should have been entertained at so late a stage of the proceedings it could only be entitled to be now considered as presenting a question of costs. But the objection came too late and was rightly overruled.

2. Did the court err in rejecting the evidence offered to establish the alleged invalidity of the title issued to Brooks? Was the clerk of the County Court authorized to certify copies of the proceedings of the ayuntamiento ?

To render a certified copy of a record or document admissible in evidence, without other authentication, it must be certified by the officer having legal custody of the original. (1 Greenl. Ev., sec. 485; Hart. Dig., art. 744.)

We have been referred to no law and we are aware of none which give's the legal custody of the original, in this instance, to the clerk of the County Court. On the contrary it appears to have belonged to the custody of the Commissioner of the General Land Office.. lie and not the clerk of the County (-ourt was the proper person to authenticate by his certificate copies to ho used as evidence. (Hart. Dig., art. 1786, 1810, 1835.) The original, however, appears not to have been deposited in the oustody'of the commissioner. And being in the possession of an officer to whom Us legal custody did not belong, it could not be proved by a certified copy. But it might have been proved by producing the original and proving its genuineness; 'or, being a document of a public nature, if there would have been an inconvenience in'removing the original, it might have been proved by an examined copy, first having proved the genuineness of the original by the testimony of fhosc who from having had cus'ody of the original or from information derived from other sources can testify as to that fact, (1 Greenl. Ev., 484, 485, 508,) the rule being that every document of a public nature, which there would be an inconvenience in removing and which the party has a right to inspect, may be proved by a dnly-autlientieafed copy; and where proof is by a copy, an examined copy duly made and sworn to by any competent witness is always admissible. (Ib.)

But it is sufficient for the present inquiry that not being certified by the officer who had the legal custody of the original the copy was not admissible.

3. It remains to inquire whether tho verdict and judgment were warranted by the evidence,

It is insisted that the evidence is especially insufficient in respect to the payment of the $1,G05 to Watrous for the use of the defendant, the fact being denied by the answer and proved by but one witness.

In respect, to this alleged payment, it is to be remarked that although the defendant York, in his lifetime, did deny that Watrous was his attorney or that ho received from him the money, jot he admitted tiiat Watrous told him that he had received the money for him, and when charged with having answered evasively upon this point, and wiili having received the benefit of the payment, and when specially interrogated as to wind her the money was not paid to his order, and whether he did not receive tlie benefit of it, he declined any answer to these inquiries. The fací s were specially alleged, and the defendant. having answered without denying the, allegations, they must have been 1alien as l rue without further proof, but'for the answer of the administrator of York. 1 lis answer, tiled at the trial term, was not a response to tlie pari icnlar allegations and interrogations of tlie amended petition, but was general in its character, and was evidently intended us a disclaimer simply of any knowledge on t lie subject, in order to pnt the plaintiff on proof of the allegations not previously answered. It is not to be supposed that the administrator liad a more competent knowledge of the fads than his intestate. He does not profess or assume' to answer from such knowledge; and when he undertakes to lili' a general denial on oatli of all the. facts and allegations not previously denied, lie ought to he understood, as he doubtless intended, simply as denyiug any knowledge on tlie subject-, aud as requiring proof.

Thu payment was proved by one witness, who testified distinctly and circumstantially to tlie fact. York, in his lifetime, did not deny hut admitted it. Under the. circumstances the fact was, we think, sufficiently proved: there was tlie testimony of one witness strongly corroborated by circumstances. Had the denial been made at the time of first answering to the merits, or at a term previous lo the trial, the plaintiff would have boon apprised of tlie necessity of being prepared with proof, and there would he more force in tlie argument that, lie should have procured the testimony of tlie attorney through whose agency tlie payment was made, lint pre.vioir-iy to the term of the trial, tlie fact not having been denied, there was no necessity of proof to establish it. To have required 'more would have operated oppressively on tlie plaintiff, and would have given the defendant an undue, advantage from his own omission to answer when first interrogated as to the fact.

It is further insisted that the evidence does not support the charge of fraud, and that tlie failure of title in so small a part of the land does not constitute a ground for rescinding tlie contract, but only for compensation or a proportionate reduction in the price contracted to lie paid.

It win however proved that the part of the land respecting which there was a failure to give a clear title aud possession was much the most valuable portion of tlie league.; that it possessed superior advantages, which were important to the use and enjoyment of tlie residue, aud that it formed the main inducement to the purchase. Tlie contract was not executed but executory, and under the. oiré,musí anees the plaintiff could not, we think, bo compelled to accept a tille which did not, convey the essential interest and possession which the defendant. liad contracted to convey and which he liad agreed to purchase. Where, (lie tide, proves defective in a part., or to an extent not very essential, till' contract will not, in general, he rescinded, hut performance will be decreed with a ratable reduction of the purchase-money, byway of compensation for the deficiency. But, where tlie failure of title extends to that part which formed file principal inducement to the purchase, it seems to he more in consonance with justice that the purchaser should beat liberty to rescind the contract altogether. (2 Kent Com., 47ñ, 47G, and notes.)

"There are, (says Kent) conflicting cases on this point, hut in the English "law die belter opinion seems to be that if a purchaser contracts for the entirety of an estate, and a good title can only be made to a part of it, the purchaser will not bo compelled to take it.” (Id., 470, n. e., 5th eel.) Even whe.ro there is no charge of fraud, “ it would seem, he says, to be a sound ‘•doctrine that a substantial error between tlie parties concerning the subject “ matter of the contract, either as to the nature of the article or as to the con-11 sideration or as to the security intended, would destroy the consent requisite “to its validity.” (Id., 471.)

But although there may not have been at the time of this contract any intenlional misrepresentation made, yet it can scarcely admit of a doubt that the plaintiff was deceived aud misled to his prejudice by the representations and promises of the defendant. The latter may have believed that the title ■under'which Oldham was in possession was worthless, and he may have intended to dispossess him, and it seems that the plaintiff would not have made the purchase liad he not confided in those representations and promises. The defendant ought, then, in fairness and honesty, to have taken some steps and to have instituted some proceedings to enable him, within a reasonable time, to comply with his undertaking-.

lie was to make title on payment of the purchase-money. The last payment became duo in December, 1S3S. At that time, unless excused by the plaintiff, he ought to have been prepared to make title and give possession in accordance with his contract, or at least to have taken some steps preparatory to a compliance within some reasonable time. But no such steps were taken until after six years had elapsed aud the plaintiff had abaudonded the land and elected to consider the contract at an end, when in 1S-14 he brought suit against Oldham; but this suit he had not prosecuted to judgment at the time of the trial. This delay on the part of the defendant was scarcely consistent with fair dealing. His representations and promises aud failure to perform or attempt a performance operated as complete a deception on the plaintiff as if, at the time, the defendant had not intended a performance. The plaintiff had a right to rely on -his representations and promises, and if deceived and misled by them and the subsequent conduct of the defendant inconsistent with them, to his injury it can make little difference in morals or law whether it was the intention of the defendant originally to deceive', or whether he subsequently conceived that intention. In either case the effect was the same. The plaintiff was misled by representations and promises of the defendant, which the latter did not verify, and which he has not shown that he had the ability to verify.

Upon tiie whole we conclude that a case was made out by the plaintiff proper for the rescission of the contract, and that the verdict and judgment were warranted by the evidence.

The proof shows a larger amount of purchase-money paid than is claimed in the petition, and the jury found in accordance with the proof. The plaintiff, however, having remitted the excess, this objection to the verdict is removed. ITe are of opinion that there is no error in the judgment and that it be affirmed.

PETITION EOR A REHEARING.

To the Honorable the Chief Justice and Associate Judges of the Supreme ■Court of the State of Texas:

The appellant in this case by his counsel respectfully asks that you grant him a rehearing, for the reason that as lie conceives in the consideration of 'this case the court mistook the law and did not consider the force and effect of the 33d section of an “An act organizing the inferior courts aud defining the “powers and jurisdiction of the same,” approved December 20th, lij30, which ¡act, he believes, authorized the copy of the order or judgment of tííe ayunta-miento of the municipality of Austin, which was offered in evidence by the appellant, to be read as evidence on the trial in the District Court, being authenticated as it was by the certificate and seal of the clerk of the County 'Court of Austin county, that officer, as he conceives, being made by the section of the law above referred to the proper depository of all the papers, documents, aud records of the said ayuntamiento court. Ami he will ever, &c.
W. T. McFarland,
Alt'yfor Appellant.

Noth 17. — Gib-on v. Moore, 22 T., GU.

Noth 18. — Andrews v. Marshall, 26 T., 212: Hatchett v. Conner, 20 T, 104.

Not:: 19. — Wln-ro an agreement is made for tlio exchange o’f land then resting in certificate, and the certificate of one of the parties proving to be fraudulent, (but- of which it did not appear he had any knowledge at- the time,) the land is located by the other party, the court will decree a specific performance by the latter, and require the former to pay the reasonable expense of the re-location. (Hill v. Still, 19 T., 76.)

Norn 20. — lliivs v. homier, 14 T., 629. A purchaser of land who has received a deed with special warranty may show, in defense to a suit for the purchase-money or in his action for a rescission of the contract, that a fraud in respect to the title was practised upon him. (Rhode «. Alley, 27 T., 443.)

Wheeler, J.

We have examined tlio provisions of law referred to by the counsel for the appellant in respect to the legal custody of the document containing proceedings of the ayuntamiento of tlio municipality of Austin. We are of opinion that this was a document of the character contemplated by the provisions of the law to which we before referred, and that, consequently, it belonged to the custody of the Commissioner of the General Land Office.

The act of 18S2, to which reference lias been made, shows merely what the evidence in (he case showed, that the document had not been removed to the proper place of deposit; but it does not determine, nor was it intended to determine, to whose custody it properly belonged.

Wo adhere, to the opinion that the'judgment bo affirmed for the reasons expressed in our opinion delivered at the last term.

Judgment affirmed.  