47 Tex. 440 | Tex. | 1877
The second motion for new trial was made more than two days after judgment; and
It appears that the appellant was misled without design, and under circumstances which leave him open to the charge of being himself negligent. It further does not appear that his counsel was forced to go to trial; and in support of the action of the court, it would be inferred that his counsel went into the trial voluntarily. Whilst the second application for new trial, in its other features, was not without merits, it would be difficult to say that the court clearly erred in refusing to grant it.
But we are of opinion that the court erred in refusing to grant the first motion for new trial, on the ground that the evidence was insufficient to support the verdict. Certainly, the executory contract between Perez and Watene was not more efficacious to place the laud beyond the reach of the creditors of Perez than an absolute conveyance would have been. In either case, if the instrument is not recorded, it is void as to a creditor who, by levy or otherwise, acquires a lien on the land without notice; and when the creditor, in the exercise of his rights, has the land sold, the purchaser at the sale is protected through the rights of the creditor, although the purchaser had notice of the facts at the time of the sale. (Grace v. Wade, 45 Tex., 522; Paschal’s Dig., art. 4988.)
An examination of the statement of facts, and of the charge of the court, shows that this case was tried on the mistaken view of the law, that notice to the purchaser at the time of sale was sufficient to supply the failure to have the bond or contract recorded. There was evidence of such notice given at the sale; but there was no evidence whatever charging the judgment creditor with notice at the time his lien was acquired, to wit, the time the execution was levied.
For this error, the judgment is reversed and the cause remanded.
Reversed and remanded.