221 S.W. 273 | Tex. Comm'n App. | 1920
This suit was for th< purpose of declaring a certain deed to real estate to be a mortgage, and to declare such mortgage void as to a portion of the land conveyed, as being the homestead of Mrs. Ida W.
The facts material to the controversy, as found by the answers of the jury to special issues, and aided by uncontradicted testimony, are substantially as follows: The property in controversy was a part of the original homestead tract of W. W. Weatherred and wife, and was their community property. They both died intestate some years prior to 1911, leaving six children: The plaintiff ¡Mrs. Ida W. Harris, who some years previously had been permanently abandoned by her husband, the interveners, Mrs. Mattie Short, Maggie and Willie Weatherred, unmarried daughters, and James P. Weatherred, and Mrs. Anna Pratt, who had previously been settled with and was not interested in the land involved in the suit. A portion of the .original homestead tract had been set aside to Mrs. Short, but the partition deed had been lost. The property involved was in fact-owned oh the 15th day of May, rail, by Mrs. Harris, Misses Maggie and Willie Weatherred, and James P. Weatherred. Some years prior thereto Mrs. Harris, with the consent of the other heirs, had built a home on a portion of the tract, which she had occupied as a homestead for many years; but no deed had been made to her. On May 15, 1911, Mrs. Harris,Mrs. Short and husband, Misses Maggie and Willie Weatherred, and James P. Weatherred executed a general warranty deed conveying the property to W. W. King, for the recited consideration of two notes of $1,500 each, secured by vendor’s lien upon the property, executed by King, and payable to the order of James P. Weatherred, and $1,000 in cash. Mrs. Short and husband had no interest in the property, but joined in the deed as a matter of form. This deed was not placed of record until after the rights of the parties to the suit had become fixed. The circumstances under which this deed was executed were that James P. Weatherred wished to engage in business and desired to raise money, and the purpose of the deed was to accommodate hint in raising the money by negotiation of one of the notes. King paid none of the cash consideration expressed in the deed, but executed the vendor’s lien notes as an accommodation to James P. Weather-red. The portion of the property upon which the home of Mrs. Harris was situated remained in the possession of Mrs. Harris, through tenants, she collecting the rent thereon; and the remainder of the tract remained in the possession of interveners, through tenants, they collecting the rent in the same manner until some time after March, 1912. James P. Weatherred negotiated note No. 1 to a bank, and note No. 2 to a firm in Houston; they having no knowledge of the circumstances under which the deed was executed. On March 6, 1912, defendant A. D. Hamilton purchased all that portion of the property, except Mrs. Harris’ homestead, from King, taking a general warranty deed thereto; the consideration being that he assumed note No. 1 and paid an additional $1,-000. This was paid to King, $500 in cash and a $500 note, not secured by a lien; the cash and note being turned over by King to James P. Weatherred, who later collected the note. At the time of this purchase A. D. Hamilton knew that the interveners were in possession, through tenants, and collecting the rent, and testified that he was told by King that the reason of such possession was that King had not paid the $1,000 stated as part of the consideration in the deed to him, and that he had agreed with grantors that they should collect the rent in lieu of interest until he should pay the $1,000, and that it was understood that Hamilton was to permit the grantors to collect the rent for the balance of the year 1912. At the time of executing this deed from King t,o Hamilton King also executed a deed to Mrs. Harris, conveying to her her homestead tract; the consideration stated in the deed being the cancellation of note No. 2. This deed, King testified, was placed with James P. Weatherred, to be delivered to Mrs. Harris upon payment of note No. 2, upon which King was liable as maker. A. D. Hamilton knew of the execution of this deed and of the alleged agreement under which it was delivered to Weatherred for Mrs. Harris at the time he purchased the remainder of the tract from King. The jury found that Weatherred did not represent Mrs. Harris in this transaction, and that no agreement was made that note No. 2 should be canceled as a consideration for the deed to Mrs. Harris.
On the 9th day of June, 1913, defendant Beaver A. Hamilton, a son of A. D. Hamilton, purchased the Ida Harris homestead tract fíom W. W. King by general warranty deed, the consideration expressed being the assumption of note No. 2; and Beaver A. Hamilton at the same time paid oft and took a release to note No. 2. In the transaction Beaver A. Hamilton was represented by A. D. Hamilton,, who furnished the money to take up note No. 2, and who testified that in so doing he was influenced by the fact that note No. 2 constituted a lien upon the balance of the property which he had previously acquired from King. The jury found that Beaver A. Hamilton was not an innocent purchaser as to the Ida W. Harris tract, but that A. D. Hamilton was an innocent purchaser as to the remainder of the property bought by him. The jury found that James P. Weatherred was the agent of Mrs. Harris in the transaction which resulted in the execution and delivery of the deed of May 15, 1911, and further that none of the interveners knew or consented to the sale by King to A. D. Hamilton. Upon the verdict of the jury, judgment was rendered in favor of A. D. Hamilton for the property acquired by him in the deed from King, and in favor of Mrs. Harris for
“That any subsequent purchaser from the grantee is entitled to rely upon the conveyance purporting to dispose of all the grantor’s title, and that consequently he is justified in assuming, without inquiry, that the possession of the grantor is by sufferance of the grantee, and does not indicate the existence of any rights in him.” 2 Tiffany’s Real Property, p. 1089.
See, also, 23 A. & E. Ency. Law, pp. 502, 503; 39 Cyc. p. 1753.
This exception has been frequently upheld as the law of this state. Eylar v. Eylar, 60 Tex. 315; Love v. Breedlove, 75 Tex. 649, 13 S. W. 222; Graves v. Kinney, 95 Tex. 210, 66 S. W. 293.
This exception has been held not to apply in cases where the grantor himself does not remain in possession of the conveyed premises, but retains possession through his tenant. Randall v. Lingwall, 43 Or. 383, 73 Pac. 1. This holding appears to have been followed by our Supreme Court in Moore v. Chamberlain, 195 S. W. 1135, affirming Chamberlain v. Trammell, 61 Tex. Civ. App. 650, 131 S. W. 227. See, also, Brooker v. Wright (Civ. App.) 216 S. W. 196.
.In the case at bar A. D. Hamilton knew at the time of his purchase that the possession of the grantors was not subordinate to the rights of King as expressed in the deed. He was informed by King that the recited $1,000 cash consideration had not been paid, and that the grantors had the right, under an agreement with King, to collect the rent until the $1,000 was paid. This was actual knowledge that such possession was under a claim of right inconsistent with the terms of the deed, and notice that, to obtain possession, or even the right to possession, their just demands under their possession would have to be satisfied. This knowledge, we think, required of Hamilton that he inquire of those in possession, through tenants, the terms upon which he could, as a purchaser from King, acquire the title and possession of the property. Knowledge that those in possession were there as a matter of right, and were claiming in derogation of the rights of the grantee as expressed in the language of his deed, in our opinion put Hamilton upon inquiry as to the full extent of the claim of the grantors under their possession. Jinks v. Moppin (Civ. App.) 80 S. W. 390.
We conclude that the judgment of the trial court and the Court of Civil Appeals should be reversed, and the cause remanded to the district court, with instructions to ascertain the several amounts necessary to enforce the liens and rights hereinabove found to exist, foreclose said liens, and order the property sold in accordance with the rights of the parties herein found, and award to A. D. Hamilton a judgment against King on his warranty.
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