47 Tex. 109 | Tex. | 1877
It is contended by counsel for appellant, that it was incumbent upon the appellee Gidclings to have shown that the consideration paid by Sutherland to James Eisher for the league of land after the death of his wife, Jane Eisher, was not by Eisher appropriated to the
The appellant’s counsel asked the court to charge, that “ if the jury believe from the evidence that the heirs of Jane • Fisher received the benefit of the consideration paid by Sutherland to their father, James Fisher, for the land, to raise means for the support of Ms cMldren, the said hens, then the sale from Fisher to Sutherland conferred a good title to the whole of said land, subject only to the rights of those who may have subsequently bought from Fisher, without any notice of the Sutherland claim.” • This charge was properly refused, there being no evidence calling for it; and further, without decidmg that there might not be such an equitable case made as would, under peculiar circumstances, justify the application of süch a rule, it would certainly not generally be a correct rule of law, determining the rights of heirs to the mother’s interest in the community left in the hands of the father. It would put Mm in the position of a guardian, without the control of the court, m the disposition
It is contended, by appellant’s counsel, that appellee had constructive notice of Sutherland’s deeds, under the registration laws. The conveyances were made in 1825 and 1827, before Stephen F. Austin, as empresario and judge of the new colony, in. the ordinary form; and the duplicate originals were said, though not proved, to have been in the office at San Felipe de Austin, and being there, it did not require any furthei registration to give notice. This is decided to the contrary in the case of Watson v. Chalk, 11 Tex., 93, which is understood to have permanently established the rule on that subject.
The important questions in the case, as now presented in the record, are: Did the purchasers, under the subsequent deed of James Fisher to French and Giddings, at or before the time of their purchase, have "notice of the unregistered deeds to Sutherland, previously made by James Fisher to the same land, and were the charges of the court and the refusal of charges asked on that subject erroneous?
The deed, with warranty, was executed in 1848, by James Fisher, for the league of land to Eichard J. French and J. D. Giddings. It is certified to be a recorded deed in 1870, but the date of its having been recorded is not stated in the certificate. Its record was seen by one of the witnesses in 1851 or 1852.
Eunn states, that he was equally concerned with French in the purchase of the land, though his name was left out of the deed, and in this he is not contradicted by any witness: and he 'also states, that, before the purchase^ he was informed that James Fisher had made a previous sale of the land "to Sutherland.
French testified, that Asa M. Lewis was concerned with himself and Giddings in the purchase of the land.
John Fisher, a son of James, stated, that he knew that his father had sold the land to Sutherland, and got some Spanish
French testified, that he had heard, previous to their purchase of the land, that Sutherland’s heirs claimed the league of land, which caused him to have the records examined.
Hensley, a witness for Giddings, stated, that the sale of the land from Fisher to Sutherland was notoriously known in the neighborhood where they lived, and that any one making inquiries about the land would have been likely to ascertain that it had already been sold by Fisher.
Mary E. Coles testified in a way to indicate that she was well acquainted with the Fisher family, though it is not stated where she lived at the time of the sale. She stated that the deed from Fisher to Sutherland was written in her house. Her depositions were taken in Washington county.
FT. A. Clampitt’s depositions wore also taken in the same county, and he seems to have been well acquainted with Sutherland’s and Fisher’s families. He stated that it was currently spoken of in the neighborhood that Walter Sutherland did buy James Fisher’s headright league of land in Burleson county, and that the sale was notoriously known in the neighborhood.
French stated, that not finding any deed from Fisher, transferring the land recorded, in Washington and Burleson counties, he asked James Fisher about the sale, and he denied that he had ever conveyed it by deed to any one, but admitted that there had been a trade with Sutherland for the land, which had been rescinded. He stated also, that he communicated all of the facts ho had learned to Giddings, and upon examination of the records, and finding no transfer, they concluded that the title would be good.
Nunn stated, that he communicated to French, before their purchase in 1848, the information which he had obtained about James Fisher having sold the land previously to Sutherland. This is attempted to bo shown to be incor
This evidence, taken together, establishes that French and Giddings, as well as Lewis and Bunn, had such information of the claim of Sutherland’s heirs as was well calculated to, and actually did, put them upon inquiry to ascertain whether James Fisher had not sold the land previously to Sutherland; and that if they had made that inquiry in the neighborhood where James Fisher had lived, which was near the land, they would readily have ascertained the fact that James Fisher had conveyed the land to Sutherland, and had received a valuable consideration for the same; and they could also have obtained information as to where the Sutherland heirs could be found.
Under the state of things as they existed in this country up to 1848, it was generally not difficult to trace out the history of a transaction of the importance of this one, by information derived from the old settlers, who, it is well known, knew each other at a great distance, and kept themselves informed usually about each other’s transactions relating to their headrights. This is evidenced in this case by the familiarity and certainty with which witnesses speak of transactions that took place from twenty-five to forty years previous to their giving then- evidence, some of whom lived at a distance which, at this .day, would preclude all probability of their knowing anything about them.
The court charged the jury, that “the question of notice is a question of fact, to be determined by the jury from all the facts and circumstances given in evidence before them, and on this subject you are charged, that any information which will be sufficient to put a prudent man upon inquiry, will be regarded as notice, if it is of such a character that he might have ascertained the facts by the use of proper dili
It might seem difficult to understand how the jury could find a verdict for the plaintiff' Giddings under such a charge, with this evidence before them. It may be in some measure owing to the fact that, on the trial# pains were taken to leave it in doubt that J. IX Giddings himself had any notice of the transfer of James Fisher to Sutherland; and although the court told the jury that notice to French would be notice to Giddings, still the court refused to give the same charge, as to notice, to Nunn, if they believed that he was also concerned with them as a partner in the purchase of the land; and in connection with the charge above quoted, and immediately following it, the jury were instructed, that “if you should believe from the evidence that the plaintiff [who was J. D. Giddings] had no notice of the Sutherland title, at the time he bought from James Fisher in 1848, then he is entitled to a verdict for the whole of the land in controversy.” If the jury understood this as requiring that Giddings must have had personal knowledge of the title, or even information, such as French said he (French) had, it was calculated to mislead the jury; for if his co-purchaser, French, had sufficient notice, it was immaterial whether it was communicated to Giddings or not. And if Nunn or Lewis were equally with them concerned in the purchase, it is not perceived why notice to them would not equally be notice to Giddings, although their names were not inserted in the deed of purchase. That Nunn’s means went in part to pay for the land in making the purchase, as mercantile partner of French, is not controverted; and French testified that A. M. Lewis was jointly concerned with him and Giddings in the purchase of the land in 1848 from James Fisher. If the absence of notice personally to J. D. Giddings had been a material fact, and it had been true that there had been an absence of it, it
The principle upon which an unregistered elder deed to land must yield its priority to a junior deed that has been
Because the court erred in not setting aside the verdict and granting a new trial, the judgment is reversed and the cause remanded.
Beversed and remanded.
[Associate Justice Moore did not sit in this case.]