53 Tex. 238 | Tex. | 1880
It is admitted by the parties, and found as a fact by the court below, that appellee, Amelia Romele, was the owner and in actual possession of the land in controversy on the 12th day of December, 1877, when the deed to Charles Maher, appellant’s vendor, was executed. This deed, which is in the usual form of a general warranty deed, purports to have been made in consideration of eight hundred dollars, paid at the time of its execution, was duly acknowledged and recorded on the day of its, date. There is nothing on" the face of it from which it can be inferred that it was executed upon trust, or that the title which it purports to convey was not absolutely and unconditionally vested in the grantee.
On the day after the execution and record of this deed, Maher sold and conveyed the land by like deed to appellant in
The evidence clearly established, and the court below found, that the deed from the appellee was procured by false and fraudulent representations of the basest character, made to her by Maher for the purpose of cheating and swindling appellee out of her house. But as appellee by her voluntary deed vested the legal title in Maher, if appellant purchased bona fide for full value without actual or constructive notice of the intent or purpose upon which the deed was executed, he is not affected thereby.
Admitting that the stipulations and conditions upon which the deed was executed could have been enforced against Maher and purchasers from him with notice, there is certainly nothing in the record to show that appellant had actual notice of the secret trust upon which Maher agreed to hold the deed, or that the purpose and intent of its execution was not what upon its face it purported to be. Was there, then, anything shown which fairly tends to charge him with such notice, or to put him on inquiry, by which, if proper diligence had been used, appellant, it must be presumed, would have learned such facts as would effect him with notice?
By the deed from appellee to Maher, and that from Maher to appellant, the legal title to the land passed to and vested in appellant. The burthen of proof to rebut and overcome appellant’s apparently perfect title was upon appellee. This, it is insisted, she has sustained by showing: First. That she was in possession of the land when appellant purchased. Second. That it was commonly known in the town of McKinney, in which the land is situated, and where Maher lived, that he was in indigent circumstances and had no means. Third. That the land was not fully paid for by appellant.
It has more than once been held by this court, and must now be regarded settled law, that, as a general rule, possession of real estate is constructive notice of the title of the possessor.
It may, we think, be well questioned . whether the alleged trust upon which this deed was executed is not of a character which the policy of the law forbids the courts to enforce. The purpose of the execution of the deed by appellee was to protect the property from liability for a debt which, through the fraudulent misrepresentations of Maher, she was induced to believe other parties were seeking to hold her liable. If the facts were as she supposed when she made the deed, however fraudulent may have been the conduct of the vendee, the court could give her no relief. But her motive in executing the deed is precisely the same, whether she acted upon her knowledge of the facts, or upon a mistaken belief in regard to them, growing out of the fraudulent representations of her vendee. But waiving this point, and considering that notwithstanding appellee’s fraudulent intent, as there were, it seems, no creditors to be defrauded by the deed, and certainly none having any claim upon this particular property, the fact that appellee had not vacated the premises on the day after the execution and record of her deed, did not, in our opinion, charge appellant with notice of the secret agreement between aqipellee and Maher, that said deed should operate as a mere simulated conveyance. From the very nature of the agreement it must be presumed that what the parties did was not intended to be made known to the public, and that inquiry as to the nature
But it cannot properly be said the appellant was chargeable with notice that appellee was in possession of the premises when he bought of Maher. Both appellee and Maher were in actual occupancy of them. In such case the law as regards third parties imputes possession to be with the title. This was on the record, and as far as it was intended should be known by the public, in Maher. At most, the possession of appellee was ambiguous and equivocal, and cannot be held to be sufficient to charge a party paying full value for the property, with knowledge that the deed to Maher was without consideration and a mere cover of the property, as appellee supposed from liability for a debt, with which it was about being attempted to charge it.
Nor do we think the bare fact that Maher was generally known to be without means and in indigent circumstances, sufficient to put a purchaser upon notice of the trust upon which he took the deed. Or that the sale of the land by him was in fraud of the rights of his vendor. If there were facts casting suspicion on his title, or the bona fides of his conduct in selling the land on the day after its apparent purchase, his pecuniary condition might be a fact of much moment. But standing alone, it certainly cannot warrant the conclusion sought to be drawn from it.
Although it has been held otherwise by many courts, it is now well settled, at least by the weight of more recent decisions, that the giving of a promissory note payable to bearer is as effectual as the payment of the same amount in cash to prove a purchaser for value.
The judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered April 20, 1880.]