32 S.W. 78 | Tex. App. | 1895
This suit was brought in the form of trespass to try title by the appellee against the appellant, to recover a tract of 16 90/100 acres of land situated in Brazoria County; the defendant, the J.S. Brown Hardware Company, pleaded not guilty, and, in reconvention, pleaded title in itself, and prayed for judgment and for costs against plaintiff, and on trial of the cause by the court, without the intervention of a jury, judgment was rendered for plaintiff, and defendant appealed to this court.
The record discloses the following facts: Moore Allen conveyed the property in question to Mrs. Fannie A. Dujay, in November, 1889, and the deed of conveyance was duly filed for record on the 19th of February, 1890, and recorded in the deed book of Brazoria County. Mrs. Dujay, at the time of the conveyance, was the wife of G.F. Dujay, and the deed contains nothing to show that the land was purchased with the separate funds of the wife, nor did the deed convey the land as the separate property of the vendee, but in fact the purchase was made with the separate funds of Mrs. Dujay. On the 4th of August, 1890, Mrs. Dujay, joined by her husband, Gilbert F. Dujay, conveyed the property by deed of warranty, for a consideration of $253.50, to J.E. Burke, which deed was filed for record in the office of the clerk of the County Court of Brazoria County, on the 31st of October, 1891. The defendant, the J.S. Brown Hardware Company, filed suit against the said Gilbert F. Dujay, and caused a writ of attachment to be levied on the land on the 29th of June, 1891, and the said writ with the return of the sheriff of Brazoria County, showing the levy thereof, was filed for record on the first day of July, and duly recorded in the records of said county on the 6th of July, 1891. Judgment was rendered for appellant against Gilbert F. Dujay on the 22nd of September, 1891, and execution awarded thereon, and execution was duly issued on said judgment; and on the 12th of April, 1892, the sheriff of Brazoria County levied on all the right, title, and *460
interest of the said Gilbert F. Dujay in and to said property at the time of the levy of the plaintiff's attachment, on the 29th of June, 1891; and the property, after advertisement of the levy and sale in accordance with the requirements of law, was sold at public auction, and was purchased by the appellee, and a deed was duly executed to him by the sheriff of Brazoria County on the 7th of June, 1892, and which deed was duly recorded in Brazoria County on the 19th of June, 1892. The appellant bid in the property at the sheriff's sale for the sum of $16.90. No money was paid for the land by the appellant, but a credit of a few cents was entered on the judgment. The appellant had no notice of the sale of the land by Mrs. Dujay and her husband to Burke until some months after the sale to him by the sheriff; nor did the appellant have notice that the land was the separate property of Mrs. Dujay until after the institution of this suit. Appellee deraigns title from Burke, Mrs. Dujay's vendee. The only question presented on these facts for our decision is, did the J.S. Brown Hardware Company acquire a lien upon the property through the levy of its attachment on the 29th of June, 1891? Unless the appellant did acquire a lien on the property, the judgment must be affirmed. It is true that the appellant had no knowledge when it purchased the land that it had been conveyed by Mrs. Dujay and her husband to Burke, nor had he knowledge that the property was ever claimed as her separate property by Mrs. Dujay. But this does not constitute the appellant an innocent purchaser; it was not a purchaser for a valuable consideration; it paid no money for the land; it only entered a credit upon its judgment against its debtor, Gilbert F. Dujay. McKamey v. Thorp,
The land having been purchased with the separate funds of Mrs. Dujay, a resulting trust was thereby created for her; and such trusts are not within the operation of the statutes of registration. Douglas v. Blankenship,
Inasmuch as an equitable estate, such as was acquired by Mrs. Dujay by her purchase from Moore Allen, is exempt from the operation of the statute of registration, the same estate, we think, under the facts of this case, should be exempt from the operation of the same statute when conveyed to her vendee. The statute of registration, in declaring all unregistered deeds void as to creditors, has reference to deeds which have been executed by the debtor, conveying property upon which his creditors might acquire a lien; and the statute does not apply to a deed conveying property upon which the creditor could not acquire the lien which he seeks to assert, had the property never been conveyed by his debtor. Were the appellant asserting a lien acquired by contract with the husband of Mrs. Dujay, the law of registration would apply, but not so as to a statutory lien. To hold that the property in controversy was exempt from a statutory lien so long as it remained Mrs. Dujay's, but that such lien was acquired by the attaching creditor so soon as she conveyed it to Burke, it seems to us, with due deference to counsel, would be illogical, and not in consonance with the spirit and intent of the registration statute.
The judgment is affirmed.
Affirmed.