Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-12-23

tween them, and Is consistent with the
fact that this may have occurred after
Parhsm had conveyed to Evans Huff
man. The evidence further fails to
show that the notes executed by Par
man matured. and under this state of
facts, in this action, we think the charge
of the court was misleading, in that the
jury must have understood from it that
Huffman could not recover unless he
showed that the purchase money had
been paid. or that the conveyance to
Evans and himself was made with con-
sent of the former. Before Evans can
hold the land it IS incumbent on him to
show, right rescind, which Elm such
case could not be proved unless 1t was
shown that the purchase money was due
and unpaid. 2. While ~ Texas, 369,
and Sc Texas, 265, hold that there could
be rescission of the sale of the land IN
those cases, vet the writer doubt the
correctness of the holding even IN such
cases, that rescission can, in any case In
which deed has passed, be made 9TH
erwise than by a writing, or some decree
of a proper tribunal; if for no other
reason because it makes title TO land to
rest largely in parol, when the purpose
of the statutes of fraud was to require
such right to be evidenced
in different manner. 8. The charge OF
the court was further calculated to mis-
lead the jury in that it made consent of
Evans to the making of the deed to him.
self and Huffman, essential to its valid
ity or effect for the purpose of passing
title. If Evans did not know of or con-
sent to the conveyance to himself and
Huffma before the deed was made, but
did subsequently, have knowledge of it,
and of the transaction which brought it
about, he would be bound BY it as fully
as would he by prior consent, if he
recognized its validity, and thus induced
Huffman TO rely upon the title under 1t
while limitation would bar the claim due
to the firm from Parman. Reversed and
remanded. StaytOn, G. j.
COMMISSION OF APPEALS.
C. NJ. Greenlee Va. W. H. Taylor ct
al; from Denton. Trespass to try title.
l. The three years statute of limitations
cannot avail one who has not shown title
or color of title, nor will the five years
statute await one who has not had five
years. exclusive and uninterrupted pos
session. No other judgment than the
one in favor of appellees could have been
legally rendered. Affirmed. Collard, J.
L. A. Stribling VS.. II. w. Atkinson;
from San Saba. l. Trespass to try title.
l. Where an affidavit has been made
showing that there is a missing link IN
chain of title consisting of an original
deed on file in the land office, and that
plaintiff deralgned title through such
deed, and certified copy OF same is filed
to be used as evidence, yet the original
instrument being produced in court, the
affidavit was not to be considered
further as attacking the deed, and the
original was admissible in evidence. Re-
versed and remanded. Hobby j.
l. n. Brown VS.. Jesus Perez; from
Atascosa. l. Objections raised for the
first time in this court, as to defect in
an affidavit raising the issue of the for
gerry of debt, cannot be considered. 2.
AS the evidence stands in the recond, we
think. it does not support the judgment
for appellee, but that in fact it tends
more strongly to show title il appellant.
Because the3evidence does not support
the iudgmept the cause is reversed and
rsmapoedF Hobby. j.