
    Caleb Pendarvis, Administrator, v. Frank Gray.
    1. Fraud—Cancellation of deed.—That the vendor represented that the laud sold was upon a certain creek, the purchaser wanting to buy the land for a stock ranche, which was known by the vendor, when, in fact, the land was not upon that or any other creek, had no water on it, and was worthless for a stock ranche, is sufficient ground to set aside the sale at suit of the vendee, although the vendor made the statement in ignorance of the truth, and had been unwilling to enter such description in the warranty clause of the deed.
    2. When exceptions considered as waived.—Exceptions to the admission of evidence, though properly taken, when not noticed in a motion for new trial nor in assignments of error, will be regarded as waived.
    Appeal from Bell. Tried below before the Hon. J. P. Osterhout.
    On.the 3d day of April, 1871, Frank Gray, desiring to establish a stock ranche in San Saba county, purchased from Henry Pendarvis the Carl Weise 640-acre survey, for which he paid §640. The record discloses that, previous to Gray’s purchase, he had been in San Saba county, and finding a tract of land which suited him crossing Cherokee creek, and having certain improvements upon it, he was informed by the witness White that Henry Pendarvis claimed to own it; that he then inquired of Pendarvis, who told him it was his tract, and took him and the witness hi. C. Edwards to a map on which Cherokee creek was delineated, and, pointing to a bend of the creek, stated that it was the exact locality of his land; that relying upon the integrity and representations of Henry Pendarvis, he purchased the land and paid him Ms price for it; that upon going upon the land afterwards to occupy it, he found that Pendarvis had no title to the land intended to be purchased, and that the tract owned by Pendarvis, and which his deed conveyed, was utterly worthless. TJpon the discovery of these facts he endeavored to get Pendarvis to rescind the trade, and, upon his refusal to do so, instituted this suit against Mm on the 23d day of September, 1871. Henry Pendarvis dying pending the suit, Caleb Pendarvis, his father and administrator, became a party defendant.
    Trial, verdict, and judgment for plaintiff at the March term, 1873.
    The first instruction asked by appellant, the refusal to give which is assigned as error, is as follows: “When parties have deliberately put their agreement into writing in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing, and all oral testimony of a previous colloquium between the parties, or of conversations or declarations at the time when it was completed or after-wards, as it would tend in many instances to substitute a new and different contract for one which was really agreed upon, to the prejudice possibly of one of the parties, cannot be admitted to affect the written contract between the parties.”
    
      McGinnis & Lowey, for appellant.
    
      Peeler & Fisher, also for appellant.
    
      X. B. Saunders, for appellee.
   Devine, Associate Justice.

Appellee brought suit in the District Court of Bell county, at the October term, 1871, against Henry Pendarvis, alleging that he purchased, in April, 1871, from Pendarvis six hundred and forty acres of land on Cherokee creek, in San Saba county; that defendant falsely represented the creek to run through the land; that it embraced a fertile valley, was every way suitable for a stock ranche, and embraced certain improvements, &c.; that these representations were false and fraudulent; that the land was unfit for a stock ranche, and that it was not on or connected with the creek or any water. Plaintiff prayed for a judgment rescinding the contract, and for recovery of the amount of purchase money paid, with interest.

The defendant answered with a general denial, and among other defenses set up the fact that, before selling the land, he, defendant, stated to plaintiff that if he would delay the trade and give him time he would have the land surveyed and the corners designated and marked, by which plaintiff could ascertain for himself the position of the land; that plaintiff would not consent to the postponement of the trade, but insisted on consummating the trade for said land, which was done by defendant making plaintiff a deed for the land, receiving from him six hundred gold dollars, &c.

At a subsequent term of the court, the death of defendant being suggested, his administrator (appellant) having been made a .party, there was a trial, and a verdict for plaintiff for the amount of purchase money and interest, with cancellation of sale, and judgment accordingly. A motion by appellant for a new trial being overruled, the case on appeal is presented for our revision on the following assignments of error:

“1st. The court erred in the instructions given to the jury, by which the jury were misled.
“ 2d. The court erred in refusing to give the instructions requested by the defendant.
“3d. The verdict of the jury is contrary to law and unwarranted by the evidence."

The facts detailed as evidence show conclusively that plaintiff intended the land, when purchased, for a stock ranche; that he required a tract with water upon it; that he believed the tract purchased had water (Cherokee creek) upon or running through it, and that it contained a valley on the creek of good land. The evidence further shows that the tract is not on “ or near the creek," being several hundrecl yards from it; that it has no water on it; that it is worthless. The evidence shows that the sale was made and money paid in April, 1871, and this suit brought in October of the same year. The evidence does not sustain the charge that defendant’s intestate acted with the fraudulent intent to deceive or overreach the plaintiff. There is evidence, however, that plaintiff made the purchase mainly on the representations of defendant that the land was on Cherokee creek, in San Saba county. The fact that defendant may have (and it is believed did) innocently represented the land to be on Cherokee creek still leaves him liable for the legal consequences of his statements. They are the same as if they were made with the intention to deceive. (Haldeman v. Chambers, 19 Tex., 1.)

Under the head of mistake, Mr. Story says: “There is a very striking case coming under the head of mutual mistake, where the vendor of land, in pointing out to the purchaser the boundaries of the land which he proposed to sell, innocently represented it as being in a different place from that in which it in fact was, and as being of a different quality and value from the truth. The court set aside the purchase made on the faith of these statements, although not fraudulently made.” (1 Story’s Eq. Jur., 129.) The same author, under the head of actual fraud, p. 199 of same work, states the rule as to what would be considered fraud, and would entitle a party to relief, “Hot but that misrepresentation, even in a matter of opinion, may be relieved against as a continuance of fraud in cases of peculiar relationship or confidence, or where the other party has justly reposed upon it, or has been misled by it.” In this case the evidence, we think, shows that the plaintiff reposed confidence in and was misled by the statements of his vendor. The price paid, the evidence of the witness Edwards as to the statements of the vendor, and particularly as to the explanation given for his erasure of the descriptive words in the warranty clause of the deed. prove this. The evidence of the surveyor of San Saba county, and of the witness White, residing in the vicinity of the land sold, prove alike its position as regards Cherokee creek and its utterly valueless character as a place for a stock ranche.

The record shows that suit was brought for a rescission of the sale at the first term of the court after the purchase was made; and we think these facts and the law applicable thereto justified, on the plainest principles of equity, a cancellation of the deed, a rescinding of the contract, and a return of the purchase money with interest. This leaves the parties in the position in which they stood towards each other before the sale was completed; the estate of Henry Pendarvis receiving back the land as he sold it; the plaintiff receiving back his purchase money with interest. It is true the evidence of the district clerk (Leach) shows that Henry Pendarvis desired the trade to be postponed until he could have a survey of the land made, the corners marked, and its true position ascertained, and that he so informed plaintiff, but that plaintiff desired the consummation of the trade without delay. The witness Edwards contradicts this statement; says he did not hear it, and “he is satisfied if anything of that kind had been said he would have heard it.” This conflict of testimony it was the province of the jury to examine and decide upon. They have done so. Having decided, and there being evidence upon which their verdict can rest for its support, we do not believe that it is our duty to interfere with the verdict, and we see no error in the finding.

We do not find any error in the charge of the court; neither was there error in refusing to give the instructions asked for by defendant. The point was. inapplicable to the pleadings, and evidence of this case. The charge was fraud and misrepresentation by defendant, and evidence was admissible to show what was said before and at the time of the trade. All of the law applicable to the case contained in the second instruction asked by defendant had been given in the general charge of the court. If the charge of the court is open to objection and strict criticism, it is on the ground of being more favorable to the defendant in its last paragraph than the facts warranted.

A bill of exceptions was taken during the trial to the admission of the plaintiff as a witness on his own behalf. There was manifest error in admitting the plaintiff to testify in his own behalf. Under the act of 19th May, 1871, (Pas. Dig., art. 6827,) no right is given, but there is an absolute prohibition against plaintiffs or defendants being allowed to testify in suits against executors or administrators, as to any transaction with or statement by the deceased, “ unless called to testify thereto by the opposite party, or required to testify thereto by the court.”

How far this statement of plaintiff may have influenced the jury we cannot say; but the objection raised in the exception was not referred to in the motion for a new trial, and it is not assigned as error. It not being assigned as error, it must be considered as waived; and, according to rule 22d of this court, (32 Tex., 812,) it will not be noticed. (Pas. Dig., art. 1581; Steen v. The State, 27 Tex., 88.) There being no error in the judgment, it is affirmed.

Affirmed.  