35 S.W. 748 | Tex. App. | 1896
Opinion. — Although the land had formerly been sold by D.C. Freeman and by mesne conveyances conveyed to Robert S. Ingram, the deceased husband of Mrs. Ingram and father of the other appellees, Freeman and wife subsequently recovered it from said Ingrams by a judgment rendered by the District Court of McLennan County. And appellant having thereafter acquired the legal title from Freeman, is entitled to recover the land, unless appellees can show such facts as would entitle them to have the judgment set aside, in a suit brought against Freeman for that purpose, and also show that when appellant bought he had notice of their rights. This they attempted to do by making Freeman and wife parties defendant, charging fraud and mistake in the judgment and notice on the part of appellant.
On the trial Mrs. Ingram proved that she was in actual possession of the land when appellant bought it from Freeman, but offered no other proof tending to show that appellant had notice of their rights. It was shown, however, that when appellant bought, a lease contract was on record in the county where the land is situated, executed by Mrs. Ingram, leasing a tract of land, including the land in controversy, from D.C. Freeman. The apparent effect of said lease was to make Mrs. Ingram Freeman's tenant, and to destroy the effect of her possession as notice of her right to the land, as against Freeman; and to prevent this result, appellees alleged and offered evidence tending to prove that the lease was procured by fraud on the part of Freeman. It was not denied that Mrs. Ingram signed the lease contract, and there was nothing on record to indicate that it had been procured by fraud, nor was there any evidence tending to show that appellant had any notice of such fraud. Such being the facts, we think, in so far as it affects the question of notice to appellant resulting from Mrs. Ingram's possession of *607
the land, the lease was binding on her. If she was induced to sign the lease by Freeman's representations that it did not include the land in controversy, it was not absolutely void, like a forged instrument, but was merely voidable as between Mrs. Ingram and Freeman, or any one holding under him with notice of the fraud. The fraud relied on to prevent the lease contract from having its ordinary effect results from statements privately made to Mrs. Ingram by Freeman's agents, but for which statements appellant is no wise responsible. Eylar v. Eylar,
According to Mrs. Ingram's testimony, she trusted in Freeman and accepted his statement as to the land embraced in the lease contract; but the fact remains that she signed it, thereby enabling Freeman to place on record a written instrument which informed all persons dealing with Freeman that she held the land in controversy as his tenant. And such being the case, and Hamilton not being in fault, unless he had notice of the fraud by which the lease was procured, or of its repudiation, or did not pay a valuable consideration for the land, he is entitled to protection as an innocent purchaser.
The charge of the court and the verdict of the jury were not in harmony with this ruling, for which reason the judgment must be reversed.
On the other questions presented we rule against the appellant, except on the contention that the evidence does not support either the charge of fraud or mistake; and on that subject we express no opinion.
The judgment is reversed and the cause remanded.
Reversed and remanded.