#### Theodora Trevino v. Henry Hein.

(No. 1552.)

Appeal from Webb Comity.

Opinion by

Willson, J.

§ 105. *Failure of consideration; plea of; rights of purchaser with ivarranty; smuggled property; seizure of; purchaser of.*Appellant sold appellee thirty-five head of beef cattle for $490, receiving pay in a check upon bankers in Laredo. He executed to appellee a bill of sale, in which he warranted his title to the cattle. Appellee received the cattle in Zapata county, and drove them into Webb county, where he was engaged in the business of butchering. In a short time after the cattle had been driven into Webb county they were seized by an officer of customs of the United States as property which had been smuggled into the United States from Mexico, without the payment of legal duties, in violation of the laws of the United States. Appellee applied to the deputy United States collector of customs at Laredo to have the cattle released from such seizure, which application was refused, and the cattle were forfeited to the government, and appellee realized nothing from them. Appellee, however, when he demanded the release of the cattle, did not tender any bond in support of his claim to them. Appellee proved that he notified appellant of the seizure of the cattle, and called upon him to make good his title thereto, which he Spiled and refused to do. Appellant proved by his own testimony that he did not receive such notice, and that he had no knowledge of the proceeding to forfeit the cattle as smuggled property. Upon this question of notice to appellant of the seizure, etc., of the cattle, the evidence is conflicting. When the cattle were seized appellee notified the bankers upon whom he had drawn th.e check in appellant’s favor for the purchase price of said cattle, to not pay the same, and they accordingly refused to pay the same; whereupon appellant instituted this suit against appellee to recover the said *86purchase price of said cattle. Appellee, in his answer, admitted the plaintiff’s cause of action, but pleaded a total failure of consideration, his plea being as follows, viz.: “That on the 19th day of January, 1881, plaintiff sold and delivered to defendant, in the county of Zapata, Texas, thirty-five head of beef cattle of the value of four hundred and ninety Mexican dollars, or $M per head, for which said sum of money defendant then and there executed and delivered to plaintiff his draft in writing in plaintiff’s petition set forth; that at the time of the sale and delivery of said beef cattle by plaintiff to defendant, and the payment therefor by defendant with the draft as aforesaid, plaintiff warranted the title to said cattle to defendant, and the possession and ownership of said cattle, as good and lawful in him, the said plaintiff; that defendant, immediately upon the sale and delivery of said cattle to him by plaintiff, drove the same to and within the county of Webb, where defendant resides, where, on the 26th day of January, 1881, the said beef cattle were forcibly taken from the possession of the defendant, and seized as being smuggled into the United States in violation of the revenue laws of said United States, the said seizure being then and there in the county of Webb aforesaid, made by one Thomas 0.® Sheldon, a mounted inspector of customs in the actual service of the United States, against the protest of this defendant, then and there depriving defendant of the use, possession and benefits and profits of and from, the same, of all of which plaintiff then and there had notice; and defendant avers-that the beef cattle aforesaid, and the possession, use or value of the same, have since been, and are still being, withheld from him; and defendant solemnly avers that the fact of the cattle aforesaid being so smuggled, was not within the knowledgé of defendant until the seizure as aforesaid was made. Wherefore defendant says that the consideration for which said draft or instrument of writing was given has wholly failed, ” etc. This plea was sworn to by the defendant, and upon general *87exceptions made to it by the plaintiff, was held to be a good and sufficient plea of failure of consideration.

Appellee further pleaded in reconvention for damages, actual and exemplary, which plea was also excepted to by the plaintiff, and said exceptions were overruled as to the actual damages, and sustained as to the exemplary damages. Upon a trial by jury, verdict and judgment were rendered in favor of the defendant sustaining his plea of a failure of consideration, and also for actual damages under his plea in reconvention for the sum of $250.

The first question demanding our consideration is, did the court err in overruling the plaintiff’s general demurrer to the defendant’s plea of failure of consideration? Considering as true the facts as alleged in this plea, do they constitute a valid legal or equitable defense to the plaintiff’s cause of action? It is shown by the plea, 1st, that plaintiff warranted the title to the cattle; 2d, that the cattle were seized and taken from defendant by an officer of customs, because they had been brought into the United States from Mexico by the plaintiff, without complying with the revenue laws; 3d, that plaintiff was notified of the seizure by the defendant, but failed to appear and defend against the same; 4th, that defendant had been wholly deprived of said cattle by reason of such seizure.

It is insisted by appellant that defendant should have alleged not only a seizure, but a judgment of a court of competent jurisdiction declaring that the cattle were smuggled, and that plaintiff had notice and opportunity to come into court and defend the suit before his, plaintiff’s, right could be affected by said seizure. In support of this position we are cited to article 3076 of the Revised Statutes of the United States, which is as follows: *“*Any person claiming the property so seized, may, at any time within twenty days from the date of such publication, file with the collector or other officer a claim, stating his interest in the articles seized, and upon de*88positing with such collector or other officer a bond to the United States in the penal sum of $250, with two sureties, to be approved by such collector or other officer, conditioned that, in case of the condemnation of the articles so claimed, the obligors shall pay all the costs and expenses of the proceedings to obtain such condemnation,” etc.

It is not to be doubted but that the appellee might have proceeded, under this provision of the statute, to make claim to the cattle; but the question is, was he bound to make such claim, and have the same adjudicated, before he could be permitted to set up a failure of consideration in the contract of sale against plaintiff’s action seeking to enforce such contract? We are not aware of any rule of law that thus restricts his rights and remedies. We understand the rule of law to be, that the buyer may use a breach of warranty as a defense in an action for the price, or he may maintain a direct action for damages for the breach, without, in either case, giving notice to the seller of the breach, before thus defending or suing. [5 Wait’s Act. & Def. 628.] We know of no rule of law which requires the buyer to engage in onerous litigation in defense of his title to property, which title the seller has warranted. If the property is taken from the buyer by a superior right to that conveyed by the seller, there is a breach of the warranty of title, and the right of the buyer to recover for such breach attaches at once, and is not dependent upon a judgment of a court of competent jurisdiction, adjudicating that the seller’s title was invalid. It is alleged in this plea, however, that the plaintiff was notified at once of the seizure of the cattle. Such being the case, it was incumbent upon him to make good, if he could, the title he had warranted, and to appear «and claim the property, and give the bond required by the statute, and to assume all the burdens and expenses of protecting the property against the seizure.

The seizure of the cattle by the authorized officer of the government *'was, prima facie*legal, and devolved the *89burden of proof to show that the same was illegal'upon the claimant o| the property. [R. S. U. S. art. 909.] Appellee was not bound to assume the burden of showing that the property was not subject to the seizure, but if he chose to rely upon his warranty, had the right to do so, and, in so doing, forfeited no right to recover upon such warranty, when he had notified appellant of the facts.

February 2, 1884.

We are of the opinion that, whilst the plea of failure of consideration is not as full and specific, in all respects, in stating the defense, as it might have been, yet it stated a good and valid defense to the plaintiff’s cause of action, and that the court did not err in overruling plaintiff’s general demurrer to it.

Affirmed.