Catlin v. Bennatt

47 Tex. 165 | Tex. | 1877

Gould, Associate Justice.

A vendor of lands, who has executed his bond for title, on payment of the purchase-money, has placed the purchaser in possession, and has transferred or collected the notes for the purchase-money, retains the legal title simply as trustee, and has no interest in the land subject to execution. His creditor, who attaches land in this condition, in which, in fact, the debtor has no interest, acquires no lien, unless it be by virtue of the registration laws. (Blankenship v. Douglas, 26 Tex., 228; Freem. on Judg., sec. 366.) By that law, unless title bonds are recorded, they are void as to creditors of the vendor who acquire liens without notice, and as to subsequent purchasers without notice. (Paschal’s Dig., arts. 4988, 4989; Grace v. Wade, 45 Tex., 522.) The evidence in this case justifies the conclusion that White made his title bond to Perldns, and, prior to the levy of the attachment, had either collected or transferred the purchase-money notes, and that, therefore, he, at that time, had no interest in the land subject to attachment. It further appears, however, that this bond was not placed on record; and it is claimed that Gatlin purchased without notice of the sale to Perldns; and that, whether he had notice at the time of his purchase or not, he is protected through the rights of the judgment creditor, who, if is claimed, acquired his attachment lien without notice.

In so far as the question of notice, actual or constructive, involved issues of fact, those issues must be presumed to have been found in favor of defendants; and, unless the evidence is insufficient to support such a finding, the judgment will not be disturbed, except there be some other valid ground for doing so. Bearing this in mind, we cannot say that the evh deuce was insufficient to show such possession by Perldns, and others under him, as to give notice to both creditor and purchaser, or any one seeking to acquire a right in or to the land. Perldns went into possession in 1860, and made improvements. Perldns sold to Buster, who went into possession ; and when this sale was rescinded, Bennatt testifies that he, as agent for Perkins, had possession of the land, by tenants, at the time the attachment was levied. In 1866 the land was occupied under Perkins, who, at some time, removed from the place a dwelling-house that he had built. It seems reasonable to conclude, from the evidence, that, after 1860, the land was occupied continuously by parties who obtained their possession under Perkins. On the other hand, Perkins was dead some eight months before the attachment was levied, and the inventory of his estate contained no mention of this land; and there was evidence that his son said that the estate did not claim the land, and that Perkins himself declined to pay the balance due by him, and abandoned the land, because it was not worth the balance due. Certainly, if the land was held by tenants under Perkins, his death would not change their relation as tenants. That the land was not inventoried, might be explained by the fact that it was not regarded as worth the purchase-money due thereon; and it might still be true that it was occupied by tenants placed there under Perkins and his agents. At most, the evidence on this point is conflicting, and not sufficient to support a verdict that there was such possession as to give notice of the sale to Perkins, or that the transaction itself was so notorious as to authorize the inference of notice. But, aside from this view, there is evidence that Swearingen, the attorney of the attaching creditor, and jointly interested with that creditor to the extent of half of his claim, was familiar with all the transactions between "White, Perkins, and Buster. Under these circumstances, his knowledge ■would constitute notice to the creditor.

So there is evidence that, at the time of the sale under the judgment enforcing the attachment lien, notice was given of the Perkins claim; and whilst one witness says that this notice was given after the bids were closed, he afterwards describes it by saying that it was not given till Gatlin’s bid was made; and this corresponds with the description given in Swearingen’s testimony, that Gatlin bid ten cents an acre, and Harris then forbid the sale. The evidence on this point is certainly sufficient to support a finding that the notice was given before the bids were closed, and that was in time.

Our examination of the evidence satisfies us that the court did not err in holding (as we must assume that- it did) that both the attaching creditor and the purchaser had notice of White’s sale to Perkins, and that, by reason thereof, the failure to have the-bond evidencing the sale recorded was supplied. Gatlin, therefore, did not, by virtue of the registration law, take any other or better title than White had subject to execution ; and as White had no interest subject to execution, Gatlin took no title whatever.

The view which we haye taken of the case renders it unnecessary for us to follow the plaintiff in error in the discussion of other questions. Whether the suit brought by Mrs. Henderson was notice of the title bond to Perkins, whether the judgment rendered in that suit was valid or not, and whether there was a valid sale by the administrator of Perkins’s estate, all become immaterial questions. If the evidence was sufficient to show that the plaintiff had no title, it was unnecessary for the defendants to show that the title was in them. It was, however, necessary for defendants to establish the title bond of White. It was objected to the introduction of this bond, that it was not acknowledged by Mrs. White, who joined in signing it, for the reason, as stated in the bond, that the land sold, included the homestead. There is no question affecting Mrs. White’s homestead rights in this case. The plaintiff’s claim was under an attachment, and the title bond of White alone was sufficient, as to so much of the land as was subject to attachment; besides-, the bond was for an amount of land largely in excess of the homestead exemption, and was admissible as to the excess. The objection, that it was evidence of an equitable title, and was inadmissible, under the plea of not guilty, is groundless. The rule laid down in Ayres v. Duprey, 27 Tex., 604, is, that under the plea of not guilty, the defendant, in an action of trespass to try title, may set up any defense applicable to that action, but cannot, without some further plea, obtain affirmative, equitable relief. Certainly, an equitable title may be set up, without being specially pleaded. In this case, however, the bond was admissible, as evidence that the plaintiff had no title on which to sue.

We are of opinion that there is no error in the judgment, and it is accordingly affirmed.

Affirmed.