This, as brought, was not a suit of trespass to try title, but one in which the Texas Land Company, as plaintiff, sought by the original petition judgment upon two—remaining unpaid—of three promissory notes, and to enforce the vendor’s lien, given by the defendant, Ileson Moon, upon an executory sale of eighty acres of land.

Besides the acknowledgment of the title under which plaintiff claims, made by the defendant by virtue of the sale, he, in one of the notes, agreed to hold the land as tenant under that title until the note was paid.

To the suit of plaintiff, defendant Moon replied that the agreement and notes were fraudulently obtained, in this: that the agreement for title was falsely and fraudulently read as an obligation for a general warranty deed, when in fact it was for a deed without warranty, and that, being nearly blind and unable to read, he was deceived thereby. He prayed that as he was in the actual possession of the land at the date of the agreement of sale, and had been since 1856, that the notes and agreement be canceled, and that he be placed in' the same condition as when they were made. He also prayed for judgment for title to six hundred and forty acres of the grant of land, by virtue of the ten years’ limitation.

The plaintiff, by amended petition, asked that as the defendant had repudiated the contract of sale, the same be held forfeited and that plaintiff have possession.

*480The contested issue in the case, as presented both by the pleadings and the evidence, was as to the invalidity of the sale growing out of the alleged fraud, rather than that of the merits otherwise of the title. The theory of plaintiff’s case seems to have been based upon the superiority of his title, as acknowledged by the defendant, and that, under the circumstances, he was not required to deraign title from and under the sovereignty of the soil.

The court, upon special verdicts found by the jury, gave judgment for the defendant upon the issue of fraud; that he recover $152.04 principal of one of the notes and interest, which had been paid to plaintiff; that the remaining notes and agreement be canceled; and that defendant do have and recover of plaintiff the eighty acres of land, and be quieted in the possession and enjoyment of the same.

Under the case as made by the pleadings and evidence, we are of opinion, that in so much of the judgment as decreed the title to the land into the defendant, and that he be quieted in the possession and enjoyment thereof, there was error, in this:

1st. Because the plaintiff w7as not called upon to meet the issue of the merits of his title, but only that of alleged fraud in the sale to defendant.

2d. Because if the issue of title had been presented by the pleadings, the defense of limitation, upon which this part of the judgment seems to have been based, was not sufficiently made out by the evidence, as ten years’ adverse possession, omitting the time during which the statute was suspended, had not elapsed.

As the case will be remanded, we do not think it proper to give any .opinion as to the relative weight of the testimony in regard to the alleged fraud.

It is not inappropriate, however, to add, that upon this issue the burden of proof is upon the defendant, and that the testimony should be satisfactory in order to justify the court to set aside the written agreement.

The alleged error of the court in overruling the plaintiff’s special exception, that the defendant’s answer does not show that he is injured, or will likely be injured, by not having a warranty deed, we do not think well taken.

It is not only lawful, but in many cases prudent, that purchasers of land should protect themselves by requiring deeds with warranty; and if such be the contract, they have the right to have it enforced.

The description of the land, as given in the judgment, is quite vague and uncertain, hut it is the same given by the plaintiff' in his petition. That contained in the agreement to make title is much more specific.

Judgment reversed and the cause remanded.

Reversed and remanded.