The second and third errors relate to the law of limitations as applied to the plaintiff’s case as made in his pleadings.
It is insisted (1) the attack upon the title of appellant, Rippetoe, on the ground of fraud, presented a- new and dis*505tinct cause from that set up in the original petition, which appeared to be barred when the amendment was filed; and (2) in cases of fraud, limitation begins to run from the discovery of the fraud, or from such time as it might, by due diligence, have been discovered; and that these principles apply to and avoid the effect of the facts as a replication, against the title pleaded by the defendant.
The object of the suit was the recovery of the lot. The cause of action is the alleged unlawful taking and holding possession of it. The original petition sufficiently indicated this cause of action. The defendant only pleaded not guilty, but he introduced as a defense the sheriff’s deed and foreclosure pi'oceedings, orders of sale, etc.; to this the plaintiff, on the former trial, replied by introducing testimony to facts constituting, as was insisted, fraud, such as would avoid the sale. This right on appeal the court held was only to be allowed as pleading the facts. By amendment they were pleaded. They were not in fact or intent a new cause of action, but a practical replication to the defendant’s case as made by his testimony. The amendment was to correct an error in omitting to plead in detail the plaintiff’s case. The facts were alleged “ and offered to show fraud in the foreclosure proceedings on part of Bippetoe and his associates, culminating in the taking possession of the lot under the fictitious decree, order of sale,” etc. There was no laches in asserting his rights by Dwyer. He promptly sued, is still suing for the same thing; and has only perfected the petition so as to avail himself of his case. It would be a harsh rule to require of the plaintiff perfect pleadings, under the penalty of losing the benefit of his facts upon a mistake as to the form in which the allegations shall appear of record. In short, that the plaintiff was on appeal held to a specific pleading of the facts avoiding the title developed in the defense under the plea of not guilty, will not attach to such pleading, when promptly amended so as to conform to the rule imposed by the supreme court, the taint of laches such as would result from an acquiescence in Bippetoe’s taking *506the property up to the time of the. filing of such amendment.
While the party injured by the fraud is held, at the peril of a seeming acquiescence, to an assertion of his rights within a reasonable time, such assertion in this case is present. The suit for the property is promptly brought and vigorously prosecuted. The omission regarded as evidencing laches is at most but a mistake in the mode of pleading the plaintiff’s case, in asserting the illegality of the sale from the alleged fraudulent acts of the defendant. This was susceptible of amendment, and the amendment would relate to the filing of the original petition. Connolly v. Hammond, 51 Tex., 647; Killebrew v. Stockdale, 51 Tex., 531, 532; Tarkinton v. Broussard, 51 Tex., 554, 555; Scoby v. Sweatt, 28 Tex., 713; Becton v. Alexander, 27 Tex., 659; Thouvenin v. Lea, 26 Tex., 614; Wells v. Fairbanks, 5 Tex., 582. We understand the rule of pleading to be that the statement of evidence by which an allegation is supported is not a new cause of action; the rule would not be changed upon such statement being necessary in practice to its introduction.
The seventh and eighth assignments of error relate tp the one subject. A charge refused being “ to the effect that a party purchasing property during the pendency of a suit, in which it is the subject of litigation, will be bound and concluded by the judgment therein, the refusal to give which is one of .the grounds in the seventh assignment.”
The court on same subject gave the following: “That Presley and Perryman having sold all their interest in the lot in controversy prior to the rendition of the judgment of foreclosure on the 17th day of October, 1870, and the sheriff’s deed reciting that he conveyed all the interest Presley and Perryman then had in the lots sold by him, Rippetoe took no title by his purchase under the order of sale.”
The facts to which the charge was intended directly to apply are substantially as follows: The sheriff’s deed recites that by virtue of orders of sale issued on the decree of *507foreclosure rendered on the 17th and 21th days of October, 1870 (specifying the suits), directing him to sell the lots, describing them, he levied upon “all the interest Presley and Perryman had in the lots on the 17th and 21th days of October, 1870,” and on the first Tuesday in January, 1871, sold said premises, and at said sale said premises were struck off to Bippetoe for S50, under each execution, in consideration of which, and the payment of the purchase price, he conveyed to Bippetoe “all the estate, right, title and interest Presley and Perryman had in said lots on the 17th and 24th days of October, 1870, or at any time afterwards.”
“ To have and to hold the above deeribed premises unto the said Bippetoe, as f ully and absolutely as he, as sheriff,\ could convey by virtue of the said writ and orders of sale.”
In this connection the appellee submits as counter-propositions sustaining the instructions given by the court, the following:
First. The recitals in a deed of a sheriff as to the manner in which he executed a judgment directing the sale of property, and of the interest conveyed, are evidence against the grantee and parties claiming under him.
Second. The deed executed by the sheriff is the primary evidence of the contract of purchase, and of the extent of the interest acquired by the purchaser; and the legal effect of the deed cannot be changed by parol evidence of the intent of the parties thereto.
Whatever may be the general rule as to recitals, we do not see that the recital by the sheriff, that he levied on and sold a particular interest in the land, would conclude the purchaser from showing, by the process under which the sale was made and the decree of foreclosure, that a sale of an interest other than that recited in the deed was actually offered for sale and sold; and that the purchaser became entitled to what he actually bought, although additional to that as described in the recitals in the deed as having been levied upon, etc. While these recitals may be evidence, they are not conclusive. The foreclosure proceedings, the decree, order of sale and sheriff’s return, were also competent evi*508deuce of what was sold by the sheriff; who, in the execution of the order, was but a ministerial officer, authorized and directed to make the sale. Actual levy was unnecessary, and a mistake in it, or a misrecital as to it, could not affect any rights of the parties.
[Opinion delivered June 21, 1880.]The sheriff’s sale conveyed to the purchaser whatever of title was subject to the sale as indicated in the decree of foreclosure and in the order of sale. Its effect was .not destroyed by the recital in the deed, or in his return as to the mode of making his levy. The decree of the court and the order of sale directed the sale of the lot; the sheriff sold it. His deed evidenced the sale as having been made. It is a doctrine old as our jurisprudence, that a purchaser pendente lite takes only such title as his vendor could give; takes subject to the result of the pending legal proceedings. Briscoe v. Bronaugh, 1 Tex., 335; Lee v. Salinas, 15 Tex., 497; Tuttle v. Turner, 28 Tex., 773; Baird v. Trice, 51 Tex., 555.
The charge of the court limiting the effect of the sale to the interest had by the defendants in the foreclosure suit at the time the decree was rendered was error. The defendant, by appropriate charge, asked its correction, and it "was refused.
For this error in the charge of the court, the judgment should be reversed.
Reversed and remanded.