Ripley v. Withee , 27 Tex. 14 ( 1863 )

Moore, J.

The judgment in this case is correct, unless the appellee’s cause of action was barred previous to the bringing-of his suit. In the case of Hallowell v. Munson, at the last Galveston Term of the court, it was decided that fraud, coupled with concealment by the defendant of the cause of action, from the plaintiffs, would suspend the running of the statute, or entitle the plaintiff to an action upon the discovery of the fraud, or at such time as he might have done so by the use of reasonable diligence. We thiffir the principle of that case applicable to this one, and decisive of it. The transfer of the certificate by the appellant, for a valuable consideration, implied a warranty of title, and its genuineness as a valid claim for land against the State. If his representation, made at the time he sold the certificate, did not import an express warranty to that effect, appellee was entitled to an action on a breach of ‘this warranty, but the statute would not commence to run against him until, by the use of ordinary and reasonable diligence, he could have ascertained that there was such a breach. It may be said, that although the appellee remained in ignorance of the fact that the certificate was a forgery, yet there was no concealment of this from him by the appellant. But it is evident, that appellee could not, by the use of any ordinary diligence, have ascertained the fact that the certificate was forged, until it had been so declared by the proper officer of the State, whose duty it was to pass upon it. When a concealment of the defect to which the warranty extends is a necessary incident of the transaction, such concealment must be regarded as the act of the vendor; and though he may have been ignorant of the defect in his title, and have acted, in fact, with the best of faith, a sale under such circumstances must be regarded as a legal fraud, and can only be treated as such.

It may, perhaps, also be questioned, in view of the objects and purposes such certificates are issued to subserve, whether they do not partake sufficiently of the nature of realty for the covenant of warranty to run with them, until they fail to serve the purpose of a genuine certificate, or the party can no longer acquire or hold title under them. The judgment is affirmed.

Judgment is affirmed.