The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-04-07

and the other half veSte,, T., ,,,.
| virtue of the transfer and wa,,r rurner by
'' ntsu IN said transfer 's eoh-
NV, wi .. ifariison, in her communist, r,,,,,
b his was an equsiabie right. ma M M
al AN ahd their assignee who took The ' in'
the eaul,a6 ps, f .n,d the person who owned
oshse turner acquired the sS,r,,,tlo i S9u
o. MRS. Harrison In the entire s,Irvn, .,,,9
she,iisasai ttle to ono-half of it as ab a,a
hin, ho.h Ioi,ows that he had united in
| ote-half the land. ee"''aoie title to
he ro meo oo,n!e,fourh Of the land sought ,o
upon e an epi hg The plaintf he relied
IA, rson through the nnrecorioasr V ,,,, Mrs;
llo i, her to Charles Turner ,o n,i,i hh
by Kim INN fro oppo ,S the legal little derived
risnn wh IN ,ne -FOUR heirs of Jonas Har
Charles Turner. 81 '''e 'ilhsier 10
whnnI9o courts below held that as TO the
the hen burd aTe nn Of the land sued for
,, iiIN a want Of notice of the unrecorded
tlWe, anu Tor that reason pny,, indymant
As a w IT,, MN ior three fourths of the land
spntable title of Mrs HARRISON th2s al, al
,,ls was error. Judgment could not have
,Ien NJ, nd upon this ground for more
TRe tie xiii 81 The Ell laq nd In se,on,royersy
rof as to the half of the land 81, s,,a5
IIIh W John, william n. c. and Thomes
Of the 81 e'.;,, Vas not within the meaning
from the sovereignty of The soil nor n,M'S ss
It color Of title" within The me,n TnS
o Zion t'e statute; and his claim OF limita,
sustained qls against the claim of plaintiff
TOT thai half of the land.
opliGon by Brown i.
j. Fl, GIBSON VS.. LANCASTER BROS.
certified question In a case from Dallas
county, Fourth district.
In 1894 II. C. T0vers orlared car
ioad 81 lumber from Lancaster Bros. 10
.r r., snippe1 from Marshall TO Dallas.
W cars. The order was made by Travers
IN the name of the Texas BOX and crate
factory fictitious concern with the
itamuuieni purpose of ohtalnng possession
D it,, o o iimner without paying for it, The
lumber was shipped in response to the
ordef, and turned over TO one Parks who
CANNED that he had purchased it from
Wv. .m Gohsignce; Travers or Parks paid tho
treisht, which, Tor convenience It was
UNDERSTOOD when the lumber was ordered
Stoulu nc PAD 10y the consignee and cred
lfed en- the bin as part oc ;he purchase
money; Parks sold The lumber to defend
ant Gibson. who knew or shonll have
procured.
Upon learning of the fraud practiced
upon them Lancaster Bros. brought suit.
without rendering the money paii for the
freight against Travers ana Parks for {.
recession of the contract. The property
was seized under a writ OF seouestratioH.
and Gibson filed his claimants affidavit
and bond for trial of the right of prop
erty.
Question--"Did the payment Of tho
freight under the circumstances mention
ed preclude Lancaster Bros. from rescrnd-
ing the contract and recovering their
property?"
A sale procured through fraud is not
void bat voidatle a. the election of tho
party defrauded To recover the property
the party defrauded must rescind the con
tract. If amy part of the purchase price
las been raid II must he rendered back.
These principles are elementary.
fretb ps3i was pro tani, i'I novmept ' of
the purchase price. In order 10 rescIrd
The sale. IL was necessary that 1t should
be refunded.
Oninion by Gaines C ].