Lumpkin v. Adams & Wicks

74 Tex. 96 | Tex. | 1889

Collard, Judge.

It is evident that the deed of Jacob De Cordova to Victor Considerant, of January 9, 1856, was intended as a mortgage to secure an indebtedness of Cordova to Considerant, and that the latter so accepted it. The deed conveyed the survey in dispute, not then patented, and other surveys. Ten days afterwards Considerant, the vendee, acknowledged in writing to Cordova that he had received deeds from Cordova to a number of surveys, including a deed to the certificate located on the land in dispute, to secure the payment of Cordova’s two notes to him, one for $3310, the other for $60, and covenanted to reconvey the lands and certificates to Cordova upon the payment of the notes, both of which were dated of even date with the defeasance. The defeasance is of different date from the deed, but refers to it as having been then received. As a further proof of this we find that afterwards, on the 33d day of January, 1857, Cordova executed a deed of trust to F. Gil-beau, trustee, to secure the payment of a note of Cordova of same date to Considerant for $3576 upon the same lands described in the deed of January 9, 1856, including the land in controversy, which deed of trust was executed by Gilbeau, the trustee, by sale of the land to J ames B. Sweet, March 3, 1858, who conveyed to plaintiffs by warranty deed July 18, 1870, after which, in 1885, Considerant quit claimed to plaintiffs for the consideration of one dollar. These facts show very conclusively that Considerant accepted the deed of January 9, 1856, as a mortgage, and" that both parties so intended it. Considerant not only expressly covenants to reconvey the premises upon the payment of the debt due him by Cordova, but he afterwards accepted a deed of trust on the same property to secure another note due by Cordova to him, and by his quit claim to plaintiffs in effect recognizes and ratifies the sale under the deed of trust to Sweet, from whom plaintiffs purchased. It results from this that we must look to plaintiffs’ deraignment under the deed of trust for their title. Their title is perfect under that deraignment unless defendant is entitled-to protection against it as an innocent purchaser.

Defendant claims title by a deed to him by Davis, administrator of the estate of Jacob De Cordova, November 36, 1881, for a consideration of $33. The administrator’s sale was regularly made by order of the Probate Court of Bosque County, where administration of Cordova’s estate was pending, the sale was duly confirmed, and the deed ordered to be made to the purchaser. It was proved that the defendant paid the $33 bid by him for the land, and that he had no actual notice of plaintiffs’ title. Plaintiffs claim that defendant had notice of their title at the time of his purchase by virtue of the record of the deed of J. B. Sweet to them, of date July 18th, 1870, recorded in San Saba County June 16th, 1871, and by virtue of the record of the deed of Cordova to Considerant in Bexar County on the 11th day of January, 1856. First, as to the record of the deed of Sweet to plaintiffs in San Saba County. It contains the following statement or recital: “The above lands having been conveyed to James B. Sweet (this vendor) by Francis 'Gilbeau, trustee of Jacob De Cordova, by deed dated March 3d, 1858, which deed is recorded in the record of deeds of Bexar County in Book B No. 2, on pages 374 and 375.” This record was no notice to defendant of the deed to Sweet by Cordova’s trustee. Besides creditors, the registration of a deed affects with notice of its contents only subsequent purchasers and mortgagees of the same land from the same vendor. Pasch. Dig., arts. 4988, 4994; Rev. Stats., arts. 4332-34; 3 Wash, on Real Prop., 319.

Other purchasers from a prior vendor can not be held to have notice of the deed. They are only bound to search the records and know what they contain of sales and encumbrances made by persons under whom they claim. Such records only can affect their rights.

Mr. Washburn correctly states the law of the case before us as follows: "Nor is a purchaser bound to take notice of the record of a deed made by a vendee of the same vendor if such vendee’s deed is not itself on record so as to complete the chain of his title.” Id., p. 316.

If defendant was not bound to take notice of Sweet’s deed to plaintiffs, on account of its registration he was not bound to take notice of its recitals.

Now as to the record of the deed of Cordova to Considerant. The-record was made at a time when it is conceded the land in controversy was in Bexar County, where the deed was recorded, and it must follow that defendant was affected with constructive notice of the conveyance, and it would also follow that if plaintiffs were in a position to-be held bona fide purchasers from Considerant for value they would be-protected under their purchase from him notwithstanding the defeasance. But they are not in such position, because their claim under Considerant. is by a quit claim deed and for a nominal consideration. Besides, they claim and their real title is under the deed of trust from Cordova toConsiderant, which seems to have been substituted by the parties, Cordova and Considerant, for the first transaction evidenced by the deed, and the defeasance.

We do not intend to hold positively that the deed of trust was such substitution, but that there is some evidence to that effect, and upon another trial there may be more that will unquestionably establish the fact. Defendant (appellant) in his brief argues that the deed of trust was so> substituted because the debt and note secured by the trust deed was 82576, which is the amount principal, and interest at twelve per cent per annum, of -the two notes mentioned in the defeasance, for one year, the date of the.new note, and the deed of trust being one year and three days after the notes described in the defeasance, which were due at one year. The rate of interest of these two notes does not appear, but the new note secured by the deed of trust was due in six months and bore interest at twelve per cent-after maturity. It is a question of fact which we do not decide as to whether the transaction represented by the deed of trust was a substitution of that represented by the deed of the 9th of January, 1856, and the defeasance of the 19th of the same month. The court below did not find upon this question, the decision for plaintiffs resting upon different grounds.

If it should be found that such substitution or revocation was made,' then on the question of notice to defendant we have this to say: Ostensibly the record of the deed of Cordova to Considerant was constructive notice to defendant (at the time of his subsequent purchase from Cordova’s estate) of an absolute conveyance in fee simple of the land. The deed was in fact intended as a mortgage, but the defeasance was not of record. It is upon this defeasance, coupled with the fact that the deed of trust executed twelve months afterwards and the conveyance to Sweet by the trustee were not of record, that defendant relies to show that he was an innocent purchaser. He produced the defeasance on the trial.

If he had actual knowledge of the defeasance at the time of his purchase he would be put upon inquiry and would be required to exercise reasonable diligence to ascertain the facts constituting any change in or renewal of the mortgage.—reasonable diligence to inform himself if the mortgage had been satisfied, and if satisfied how it had been satisfied. If then he had such knowledge of the defeasance, and the deed of trust was substituted for the mortgage, he would be put upon inquiry as to that and the subsequent conveyance to Sweet. It seems that the facts could have been easily ascertained, as Considerant was alive in 1885, several years after defendant’s purchase.

Plaintiffs are not limited to this one method of showing that defendant would be presumed to have had notice of their title. The notice, actual or presumptive, may be shown by other evidence.

Plaintiffs contend that the gross inadequacy of price paid for the land by defendant is evidence that he had such notice, or at least that his right to the land was only a quit claim right. The evidence decidedly indicates that the price paid by defendant was a grossly inadequate consideration, and it was said in Harrison v. Boring, 44 Texas, 262, that “not only the terms of the deed but the adequacy of the price given and other circumstances attending the transaction may serve to show when brought in evidence whether the purchaser bought the land or merely the title.” 2 Pom. Eq., sec. 600; Taylor v. Harrison, 47 Texas, 454.

The conclusion of the court below was not predicated upon the inadequacy of price paid at the administrator’s sale, nor does the evidence positively show what the land was worth at that time. We therefore withhold any opinion upon this subject.

We do not agree with appellees that a purchaser at an administrator’s sale necessarily takes as under a quit claim deed. He may be an innocent purchaser and entitled to protection against prior unrecorded conveyances by the intestate and secret trusts between him and others. Love v. Berry, 22 Texas, 372; Taylor v. Harrison, supra.

We are of opinion the judgment of the court below should be reversed and the cause remanded.

Reversed and remanded.

Adopted May 21, 1889.