Andrews v. Smithwick, 34 Tex. 544

Andrews v. Smithwick

34 Tex. 544 | Tex. | 1871

0 0-den, J.

This suit was originally brought in the district court in 1855,. to recover a bounty land certificate, or its value, which was, proven to have been sold at one time for about twenty-five dollars* There appears- to- have been five different trials in the cause in the district court, and it is now in this court for the third time ; and we would therefore he inclined to- finally settle the whole matter, and stop further litigation, but for the manifest error and wrong in the judgment of the lower court as rendered on the last trial. The two former opinions delivered in this cause seem to-have settled nearly, if not quite all the questions raised, excepting the question of limitation, and both of these opinions diecided that question upon the facts then appearing in the record, Justice Wheeler, in- the first opinion (20 Texas, 111), declared that from the facts then before the court, the statute of' Imitation could not avail the- defendant; and in the second opinion of this court, delivered by Justice Bell (24 Texas, 494), it was decided that- the court below erred in refusing to. present the question af Hmita.ti.QEi *549to the jury. We consider the facts establishing the bar by limitation have been but little changed sin.ce the cause was first brought to this court, and establish beyond controversy that the defendant committed a great fraud against the plaintiff in error, in getting possession of the certificate, and converting it to his own use, after his solemn promise, upon his honor, to the contrary, and after his written order to the Adjutant General in favor of the plaintiff in error, for the certificate. The whole proof clearly establishes the fact that he had sold the certificate, and that it belonged to the plaintiff in error, and in fraudulently getting possession of the certificate he could not change the ownership; and therefore he held it as trustee for the plantiff, and the law will presume that he continued to hold it as trustee, regardless of his adverse claim, until the plaintiff in error had actual notice of the fraudulent possession and adverse claim, or until such time as the owner, by the use- of ordinary care and prudence, might have discovered the fraud and adverse claim, and for two years thereafter. See the case of Hudson v. Wheeler, decided at this term of the court. (Ante, 356.) What would have been a reasonable time for the owner of the certificate to have discovered the fraud, was a question which, with all the circumstances proven, should have been submitted to the jury, under proper instructions ; but most certainly neither a registration of a deed in the county clerk’s office, nor the records in the Adjutant General’s office, could operate as constructive notice of the fraudulent claim from the date of registration or other record. The registration in the county clerk’s office of a deed is, by law, constructive notice of a bona fide transfer or ownership,from the date of registration; for the law has designated that office as the proper place for the registration of such transactions; but the law has made no such provision for the registration of frauds. It is true that- registration is a notorious act, which in time would create a presumption of notice of a fraud, but whether such notice would' be presumed in one or ten years is a question of fact to be decided by a jury.

*550In the case at bar there is no proof of notice until about the institution of this suit, and therefore the second charge of the court was essentially erroneous, as it instructed the jury that two years adverse possession of the certificate would bar the right of plaintiff to recover. This charge wholly ignored the question of fraud and trust, and the notice of the fraud. The third charge might have cured that error but for the first charge, given at the request of the defendant, which instructed the jury that adverse possession for two years would bar the right to recover. That charge was not the law as applicable to the facts proven. The third charge asked by the defendant, and given by the court, is also erroneous for the reasons given. The records of public offices are not constructive notice in favor of a fraudulent trustee and against his cestui que trust, to protect the fraudulent application of trust property, until such time as the law would presume, from the notorious act, the cestui que trust had received actual notice. These errors in the charge of the court, and the consequent error in the verdict of the jury, require that the judgment be reversed and the cause remanded.

Reversed and remanded.