51 Tex. 205 | Tex. | 1879
Templeman sued Mainwarring and wife for two adjacent tracts of land, two hundred and twenty-one acres and two hundred and fifty-nine acres, claiming as purchaser, in December, 1875, at an execution sale, as the property of D. D. Atcheson, under a judgment of date February 13,1874. In December preceding this judgment, Atcheson conveyed to R. Main warring by deed—not filed for record until June, 1874—a tract of land, described bylines and boundaries which embrace the two hundred and fifty-nine acre tract, and which Mainwarring and wife contend embrace also the two hundred and twenty-one-acre tract. One of the calls of the deed reads as follows: “ Thence from said corner in a line to-the rock culvert on, the railroad and to the division line of said Arnold league.” There are two rock culverts on the railroad, a large and a. small one. If the large rock culvert be the one intended, then the deed embraced both tracts of land. If, on the other hand, the small rock culvert be the one called for in the deed, then it embraced only the two -hundred and fifty-nine acre tract. The land conveyed is not described.
Mainwarring and wife, in their pleadings, sought to recover the two hundred and twenty-one acre tract, of which Templeman had possession.
A jury was wTaived and the cause submitted to the court. The judgment recites that “the court is of opinion, from the evidence, that, as to the two hundred and twenty-one acres of land, the possession of Atcheson of this tract indicates that the same was not embraced- in the deed from Atcheson to the defendant E. E. Mainwarring, evidence as to possession being alone considered; and that the said defendants never exercised any ownership or control thereof, or had any tenant thereon until long after the date of the judgment under which plaintiff claims, and that Atcheson, the defendant, was in possession thereof at the time and after the rendition of said judgment.” And then proceeds to adjudge the two hundred and twenty-one acres to plaintiff Templeman. After that part of the judgment, it further recites: “And it appearing to the court that the defendants were, at the rendition of the judgment under which plaintiff claims, in possession of the tract of two hundred and fifty-nine acres of land by tenant, and claiming the same by unrecorded deed, and that such possession was notice to the judgment creditor,”—
Both parties gave notice of appeal and assigned errors, but the defendants Mainwarring alone gave bond for appeal. In this court they filed a motion to dismiss the cross-appeal of Templeman, on the ground that it had not been perfected by giving bond.
■Subsequently, this motion not having been acted on, Templeman sued out a writ of error, and by consent of parties the two cases are consolidated and considered together.
On the part of appellants, the proposition is submitted, that “the court, in determining the question of title to the two hundred and twenty-one acre tract of land, should not have limited its consideration to the evidence of mere possession or tenancy as conclusive of that issue, but should have given proper place and weight to the evidence- explanatory of that possession.”
The response is, that the judgment of the court, if correct, will not be reversed because the reason assigned for the judgment may show that the court adopted an incorrect mode of procedure in arriving at the conclusion reached. (Dean v. Crenshaw, 47 Tex., 10.)
But it may further be responded to this proposition, that the language of the judgment does not necessarily mean anything more than that the court regarded the action and possession of the parties after the deed, as of itself, sufficient to determine its construction. The conclusion that the two hundred and twenty-one acre tract was not embraced in the deed, was doubtless reached by the aid and in the light of the entire evidence.
The judgment as to this tract of land might be supported on the ground that, at the time the judgment was rendered and the judgment lien attached, the two hundred and twenty-one acre tract was occupied by Atcheson’s tenants, and that there was no notice to the judgment creditor, by record or otherwise, of Maiuwarring’s claim thereto. Although notice
But the issue as to which culvert was intended and how much land was embraced in the calls of the deed, was purely an issue of fact; and the judgment of the court determining that issue in favor of Templeman and giving him the two hundred and twenty-one acre tract, will not be disturbed,
Templeman, in support of his writ of error, asserts that the occupation of the two hundred and fifty-nine acres was not such as to give notice of the rights of the Mainwarrings, and claims that the judgment creditor’s lien attached to that tract also, and that as purchaser under that lien he has the better title. His position sufficiently appears from the second assignment of error, as follows: “The court erred in holding that the mere attornment of the tenant of D. D. Atcheson on the two hundred and fifty-nine acre tract to the defendants, without any apparent change in the possession or occupancy of the land, was constructive notice to the creditors and persons owning the judgment at the date of its rendition, February 13, 1874, of the existence of the prior unrecorded conveyance of Atcheson, the defendant in execution, to the defendants B. and E. K. Mainwarring.”
There are authorities cited by counsel which seem to support the position taken by him. (Veazie v. Parker, 23 Maine, 170; McMechan v. Griffing, 3 Pick., 156; Loughridge v. Bowland, 52 Miss., 546.)
It is to be remarked that the registration statutes in different States are not uniform. In some, as in Massachusetts and Maine, nothing short of actual notice is allowed by the statute, and the decisions following the statute, to supply the want of registration. Where that rule prevails, the question of the sufficiency of possession to give notice may become one of fact. But under our statute the rule has become settled, that possession, either in person or by tenant, is equiva
If the possession be sufficiently open and definite, whether it be in person or by tenant, it is incumbent on one who undertakes to acquire rights in the land to inform himself of the rights of the occupant, or of the landlord of the occupant.
The purchaser should not be excused 'from inquiry unless there be something more to mislead him than his own assumption that parties occupy under the same right as formerly. The judgment as to the two hundred and fifty-nine acre tract will also be affirmed.
Whether the cross-appeal should be dismissed, became, after the writ of error was sued out, an immaterial question, save only as to the costs of that motion. The question raised is one which, under the circumstances, we do. not feel called upon to determine. It is ordered that number 926 be consolidated with number. 798, and the judgment of the court below be in all things affirmed; that the appellants pay all costs in case number 798, except the costs growing out of the cross-appeal, and that plaintiff" in error Templeman pay all costs in number 926, including the costs of the motion to consolidate and the costs of his cross-appeal in number 798.
Affirmed.
