
    Pew v. Ward.
    Ifc if» a rule of the law of Spain, in force here before the introduction of the common law, that a contract vitiated by lesion may be annulled or amended within four years, if the thing exists without much deterioration.
    All claims against which the laws of prescription in force previous to the adoption of the common law had commenced to run were barred by the lapse of time which would have barred them had those laws continued in force.
    Appeal from Bed Biver. The plaiufciff, in his petition filed May 6th, 1850, .alleged that on the 23d February, 1839, he sold, for the sum of one hundred dollars, the one-half of a league of land to James J. Ward and Samuel Bogers, “ the latter of whom is now deceased, and the said Ward is Ms administrator,” and that subsequently, in the same year, the said Ward transferred all his interest in said land to the said Bogers; that the absolute necessity of raising the sum of one hundred dollars was the only inducement to the said salo, a fact well known to said Ward and Bogers, and that the said land was worth fifty cents per acre. And the plaintiff further averred that at the time of said sale Bogers promised to reconvey to petitioner three hundred and twenty acres of said land, hut which lie has wholly failed and refused to perform. The plaintiff executed a bond for title, which lie prayed might be decreed a mortgage, and that the same be canceled on his paying one hundred dollars with interest thereon ; or, if deemed good and valid, that the defendant be decreed to convey the said three hundred and twenty acres; and the petitioner further prayed for general relief.
    The defendant admitted the purchase of the land for one hundred dollars; that at that time laud was selling at from one to two hundred dollars the half league; that the necessities of the plaintiff for one'hundred dollars, if they existed, were not brought about by any of the acts of either Bogers or the respondent, &c., &c.
    Tiie jury found specially that the land was sold for one hundred dollars; that Bogers voluntarily promised to give the plaintiff three hundred and twenty acres of the same without consideration, and that the land was worth three hundred and eighty-one dollars. Judgment for the defendant.
    It was assigned for error:
    1st. That tiie land being sold for one hundred dollars, when its real value was three hundred and eighty-one dollars, and the sale having been made in 1839, the court, instead of dismissing the suit, should have declared the sale void.
    2d. The contract should have been decided to be a mortgage.
    3d. In not decreeing a rescission of the sale upon the payment of the sum loaned and interest upon the same.
    
      A. Morrill, for appellant.
    As the time of the transaction was previous to 1840, the civil law governed. And this last-mentioned law is so plain and unambiguous that it is difficult to perceive why (he judge could make the decision that was made. (1 Domat, art. 369; 1 White’s Bee., 197, sec. 3; Bradford’s Heirs v. Brown, 11 Mart. B., 220; 2 Ñ. S., 79.)
    As there was neither a demurrer or the statute of prescription pleaded, and as there-was a special verdict, and no other irregularity or error except the judgment of the court, it is requested that this court will enter such judgment as the District Court should have entered. (Hart. Dig., art. 2913.)
    
      J. T. Mills, for appellee.
    The judgment is correct, for that plaintiff’s cause of action was barred by prescription. The term of prescription was ten years. (Gautier v. Friiuklin, 1 Tex. B., 732; I-Iays v. Cage, 2 Tex. B., 501.) Though no demurrer was put info the bill, or answer plealling prescription filed before trial, defendant can here make use of it to fortify a judgment in his favor. (Coles v. Kelsey, 2 Tex. B., 541; Swenson et al v. Walker’s adm’r, 3 Tex. B., 93 ; Long v. Anderson, 4 Tex. B., 422.)
   Hemphill, Ch. J.

The first ground is the only one insisted upon in the argument of counsel; the others, which regard the transaction as a mortgage, having been abandoned. By the first assignment, the plaintiff seeks to avail himself of the lesion existing in the sale. At the date of tins contract, the laws of Spain were in force." Under these, a sale was void not only on the ground of force or fraud, but it might be annulled for lesion; that is, if the amount for which the property was sold was less than half its just price. (1 White Bee., 397.)

Upon the facts, it is clear that this contract was tainted with lesion, the sale being for less than half the just price; and it might on that ground, had the plaintiff not slept on his rights, have been annulled, unless the purchaser had been willing to make good the deficiency. (Ib.) But as this suit was not instituted until more than eleven years subsequent to the execution of the title bond, the defendant insists that he is protected by the principle of limitation applicable to his case.

It is a rule of the law of Spain that a contract vitiated by lesion may be annulled or amended within four years, if the tiling exists without much deterioration. (1 White, 197.) The term of four years was, under this code, the limit to suits for rescission on the ground of lesion. But it may be said that this code, with its laws of prescription, was repealed on the introduction of the common law. This is admitted. But, by the 24th section of the act of limitations, (art. 2396, Dig'.,) it is declared among other matters that all claims against which the laws of prescription in force previous to the adoption of the common law- had commenced to run, shall be barred by the lapse of time which would liave barred them, had those laws continued in force. By this provision, the law of prescription as against rescission for lesion, was revived and continued in force; and the claim of the plaintiff was, consequently, more than twice barred, before the institution of this suit.

The only difficulty in the ease is, that so far as appears from the record, its aspect in this court is different from that presented by it in the District Court. ■ The grounds on which the parties urge the reversal or affirmance of the judgment do not appear to have been before the District Court for its opinion or decision. The petition does not positively allege that there was lesion in the sale; nor does it pray on that ground for a rescission of the contract.; and the answer does not, by demurrer or otherwise, set up the defence of limitation. Had the plaintiff averred lesion, the defendant might possibly have demurred or pleaded prescription. The parties, for the first time in this court, appear to have been apprised of grounds essential to the action and the defence. Under these circumstances, to permit the plaintiff to avail himself of the lesion in the contract, and to deprive the defendant of the benefit of his defence, would incur manifest injustice; and no advantage could arise from remanding the cause, as on an amended state of pleading, the judgment must necessarily be against the plaintiff; and it is therefore ordered that judgment be affirmed.

Judgment affirmed.  