No. 11461. | Tex. App. | Jan 17, 1945
This suit was instituted in the District Court of Bexar County by Willie Howard and wife, Ivory Howard, against P. T. Leonard seeking, in a trespass to try title suit, to recover the title and possession of Lots 1 and 8 in Block No. 3, City Block No. 1350, situated within the corporate limits of the City of San Antonio.
The trial court, sitting without a jury, rendered judgment awarding Lot 1 to defendant, P. T. Leonard, and Lot 8 to plaintiffs, Willie Howard and wife. From this judgment both plaintiffs and defendant have appealed.
The common source of title is Clifton L. Brewer and wife, Marjorie E. Brewer. The plaintiffs claimed title by virtue of a deed to the lots from the Brewers, while the defendant claimed title by virtue of being a purchaser at an execution sale.
The trial judge made the following findings of facts, to-wit:
"On December 21st, 1943, Clifton L. Brewer and wife, Marjorie E. Brewer, by general warranty deed, legally acknowledged and delivered, conveyed to the plaintiffs, the two lots described in their petition, for a cash consideration of $200.00 and the assumption of the taxes due thereon, and it was filed for record in the office of the county clerk of Bexar County, Texas, at 12:11 o'clock P. M. of April 3, 1944, and was recorded at 9:55 o'clock A. M. of April 12th, 1944. The lots abut each other, number 8 fronting on Blue Bonnet street, and 1 fronting on the street to the north. Around Christmas, 1943, the plaintiffs, who lived near these lots, built a chicken coop or house on lot 8 of the following dimensions: 9x8, and placed some wood and kindling thereon, but never at any time lived on or occupied the lots or either of them. On Feb. 7, 1944, plaintiffs paid $1.14 as state and county taxes on said lots for the year 1943. On the same day the plaintiffs assessed the property for state and county taxes. On March 7, 1944, the plaintiffs secured from the city of San Antonio a permit a enclose the lots with used lumber and wire. There was no evidence, other than the foregoing, of actual or constructive possession of the property by any one, or of ownership thereof by the plaintiffs. On January 5, 1944, Emmett B. Cocke recovered a judgment against Clifton L. Brewer for $194.30 plus interest, and at 12:04 P. M. of that same day filed in the office of the county clerk of Bexar County a correctly prepared and duly certified abstract of said judgment which was recorded by said county clerk at 12:20 o'clock P. M. the same day. Said abstract gave all the information required by the statute, was in conformity thereto, and was properly and legally indexed. On Jan. 26, 1944, an order of sale and execution, in due and legal form and authenticity was issued on said judgment for $194.30 and interest and costs, and acting thereunder Owen W. Kilday, Sheriff of Bexar County, made a levy on *491 the lots involved herein, and after due and legal notice thereof as by law required made public sale thereof at the time, place and in the manner required by law, and the defendant, Leonard, bought the property and received from said sheriff a deed dated Apr. 4, 1944, having paid his bid. Emmett B. Cocke nor the defendant had any actual knowledge of the said deed which is dated Dec. 21, 1943, in favor of plaintiffs, at the time their respective rights attached to the lots, nor did they have any constructive notice of plaintiffs' claims or ownership except as above stated."
It is clear that the deed was not recorded until after the abstract of judgment lien had attached, and the trial court having found that neither Cocke, the holder of the judgment, nor Leonard, the purchaser at the Sheriff's sale, had any actual knowledge of such unrecorded deed, Leonard would be entitled to recover the title and possession of both lots, unless the Howards at the time the abstract of judgment was filed held open, exclusive and visible possession of the lots. Paris Grocer Co. v. Burks,
The only evidence of any possession by the Howards as to Lot 8 is: "Around Christmas, 1943, the plaintiffs, who lived near these lots, built a chicken coop or house on lot 8 of the following dimensions: 9x8, and placed some wood and kindling thereon, but never at any time lived on or occupied the lots or either of them."
This evidence is insufficient to put a purchaser at an execution sale on notice of plaintiffs' claim of title to the lots.
What was said by the Supreme Court in Paris Grocer Co. v. Burks,
"The statute by its terms makes void the unrecorded deed as against `all creditors,' but the courts hold this to mean all creditors who have acquired liens without notice of the deed. When these elements exist the right of the creditor is perfect in law, and no considerations of equity or questions of estoppel enter into the case. It is wholly immaterial whether the creditor has ever examined the records as to the title of his debtor or not, since a deed of the property executed by the latter is by the statute made void as against the lien of the former, unless he is affected with notice. It is equally well settled, however, that an open, exclusive, and visible possession, maintained by the holder of the unrecorded deed when the right of the creditor attaches, is notice of the right under which it is held. This is so, for the reason that one who seeks to acquire an interest in or with respect to land is expected, in the exercise of common prudence, to learn of a possession held by others than him whose rights he purposes to acquire, and to make inquiry of the possessor as to the nature of the claim under which he holds. Watkins v. Edwards,
That part of the judgment which awarded Lot 1 to Leonard will be affirmed, but that part of the judgment that awarded Lot 8 to plaintiffs will be reversed and judgment here rendered awarding said Lot 8 to the defendant below, P. T. Leonard.
Affirmed in part.
Reversed and rendered in part.