1 Posey 514 | Tex. Comm'n App. | 1880
1. We are not prepared to say that there was error in the action of the court touching the admission of the administration deed. The lapse of time from its date certainly adds weight to the presumption against irregularity in the proceedings. The order of sale was made in July, 1844; the trial below was had October, 1874; an interval of over thirty years existing between the act and the adjudication upon its effect. Besides, we do not see that the order was necessarily void for uncertainty. The two leagues may have been all the surveyed lands of the estate included in the order west of the Trinity and in Robertson county/ and, if so, the order would be specific as to its objects. Taking the admission of the deed with the charge of the court upon the probate proceedings, the evidence, and the presumptions to be indulged in as explaining the conditions upon which the deed xvould pass title, xve do not believe there was error, and the first assignment is not well taken.
2. The general charge on subject of notice is without fault. Nor is the rule as to recitals improperly given, as to what recitals were notice and their effect.
A careful examination of the statement of facts fails to shoxv us any other testimony than the recitals in the deed from P. A. to G. A. Sublett affecting Graham, or tending to show any such fact within his- knowledge charging him xvith notice. The court was, therefore, not xvarranted in telling the jury to act upon the recitals in his deed (and in the deeds in the line of his title), “ together xvith any other proof.” There was no other proof to this point; at least we find none in the statement of facts.
The jury probably considered this instruction as authorizing them to weigh the other testimony (irrelevant to this issue), as adding force to the recitals as evidence of notice.
. If the recitals were sufficient to charge the defendant with notice, the jury should have been so instructed, as xvas done on the former trial of the case. If not sufficient, as there was no other testimony to the point, it would have been proper to have so informed the jury in construing the effect of the de !d.
But on appeal (38 Tex., 635), Justice Walker held otherwise, as follows: “As to the recitals in Graham’s deed they only refer to a conditional sale, and it does not appear that the conditions had been performed. The recitals are very vague and uncertain, and we do not think them sufficient to put Graham upon inquiry.” Wethered v. Boon, 17 Tex., 150.
The recitals are as follows: “ Whereas, Philip A. Sublett sold to Valentine M. Sublett two certificates for one league and labor of land each, to wit, the headright of Lyttleton White and L. Dixon, and gave to the said Sublett my bond for an amount not recollected, conditioned that patent would issue upon said certificates; and, whereas, the said V. M.Sublett died before the patents issued to said certificates; and, whereas, said bond is now lost; and, whereas, also, Geo. A. Sublett, brother of said V. M. Sublett, having caused said land to be surveyed and patented since the death of said Valentine; and the said Geo. A. Sublett appearing to be entitled to the benefits of said bond from me to the said Valentine, I do convey unto the said Geo. A. Sublett,” etc.
As there is no evidence of the purchaser being chargeable beyond the recitals in the deed, he had only “ notice of the facts which its contents import.” Cooke v. Bremond, 27 Tex., 460; McLouth v. Hurt, 51 Tex., 120. But it will be sufficient ... if the recitals lead to the fact of which he is to be charged.” Wade on Notice, § 313. See, also, 50 Tex., 323; 49 Tex., 62; 49 Tex., 463; 48 Tex., 411; 46 Tex., 123.
If the recitals are true, obscure as they are, they claim an equitable interest to have existed in the grantee, and the deed conveys to him the legal title, and shows want of equity and loss of paper evidence of title in the deceased, V. M. Sublett, at his death.
•The subsequent purchaser, while bound by facts appearing - as recognized, from the recitals in the deeds, by his vendors,
Trom the charge by the court below it is evident the’ court regarded this matter of notice as one of fact, and that, in his opinion, the recitals, “ with other proof,” should be passed upon by the jury. It would not appear from this that the judge below considered the defendant, as matter of law, chargeable with notice; nor is there evidence that, as a fact, the court held the recitals sufficient evidence, or that such question was ever passed upon by the jury. The trial below does not, therefore, appear to have been upon the facts in evidence, and with the issues really made submitted to the jury.
We do not deem it best to give our opinion as authoritative upon the recitals. It is possible that, on a new trial, other testimony may be introduced really additional to the documentary evidence, or explaining the equities of Geo. A. Sublett in the land, inducing the conveyance to him.
In our opinion there was error in the proceedings below, for which the judgment should be reversed.
RbVEKSED AND EEHANDED..
