64 Tex. 334 | Tex. | 1885
This cause was submitted to the jury upon the theory that the evidence tended to show that the deed from Blume to Behusch, although absolute in form, was in fact a security for debt, and that Hoffman purchased with notice of such fact.
But considering the evidence in the most favorable light for Blume, it seems to us to admit of no doubt that the real transaction, was a conditional sale. Blume does not pretend that the relation of creditor and debtor existed between him and Behusch after the execution of the deed, or that such relation ever existed as between them. There was no existing debt against Blume created by the transaction. And the evidence, most favorably considered for Blume, shows that he had the right to repurchase the property, at any time within four years from the sale, by paying an amount agreed upon by the parties.
Blume’s deed to Behusch was upon record and was by its terms an absolute conveyance, containing no conditions, limitations or restrictions whatever. Besides, he was then in possession of the property as the tenant of Behusch; and it was under these circumstances that Hoffman purchased the land from Behusch and took his conveyance for the same. However, Blume claimed that Hoffman was chargeable with constructive notice of his claim, because at the time he purchased the land a suit was pending in justice court in favor of
Lis pendens is only constructive notice of that which is involved in the litigation. Freeman on Judgments, § 198.
Conceding that Hoffman is chargeable with notice of the suit pending in the justice court at the time of the purchase, the question would then arise, as to the extent of that notice, and its effect upon his rights. It was an action of '•'•forcible detainer’1'1 under the statute for the possession of land, by the landlord against the tenant, for failing to pay the rent according to the terms of the lease. No question of title was or could have been adjudicated in that suit, and it as certainly follows, that appellant was not, by reason thereof, chargeable with notice of any assertion of title by Blume inconsistent with his deed to Behusch, then of record.
Blume’s possession as the tenant of Behusch was entirely consistent with his deed to the latter, and such possession would not constitute notice of any assertion of right to the land, inconsistent with his conveyance. Eylar v. Eylar, 60 Tex., 317.
If upon another trial it should be shown that Hoffman purchased with notice of Blume’s asserted rights, then he would simply occupy, •with reference to the matter, the position occupied by his vendor, Behusch. Then if it is further shown that the transaction between Behusch and Blume was in fact a mortgage, that is, a security for debt, appellant’s only remedy would be a foreclosure of the lien. But if, as now appears, it was a conditional sale, and Blume had forfeited his right to repurchase by a failure to pay rent as claimed, then appellant would be entitled to recover the property. And if Blame has not lost the right to repurchase, he would be entitled to hold the land by tendering the amount agreed upon between him and Behusch.
However, if Hoffman was an innocent purchaser for value, that is, if he paid value, relying upon Blume’s deed to Behusch, and without notice of the claim now asserted by Blume, he would be entitled to a judgment for the land.
Our conclusion is that the judgment ought to be reversed and the cause remanded.
Reversed and remanded.
[Opinion adopted June 5, 1885.]
