On the 3d day of May, 1902, appellee, Florence L. Hines, then Florence L. Taylor, brought an action of trespass to try title for the seven sections of land in question, against J. W. Taylor, her then husband, and John Sparks. Taylor and Sparks thereafter interpleaded the appellant Meador Bros., who in answer to the appellee’s petition, alleged that they had purchased the land from J. W. Taylor and John Sparks, in good faith for value, and without notice that Florence L. Hines, the then wife of Taylor, had or claimed an equity in the land. Ap-pellee, in addition to the ordinary allegations of trespass to try title, set out at great *916 length her equity in the land, and charged a fraudulent conspiracy on the part of Sparks and Taylor and others to defraud her of her rights. The case was brought on change of venue from Sherman county to Potter county, and tried at the March term thereof, 1913. The court submitted the case to the jury upon special issues, to which the jury returned answers in favor of the appellee, and judgment was rendered in accordance therewith, and from which appellants prosecute appeal.
This case has been before the Courts of Civil Appeals heretofore and the Supreme Court and is reported in
The jury in answer to the issues submitted to them returned a verdict, finding as facts substantially the following: That on or about the 15th day of September 1900, Mrs. Hines, then Taylor, was to raise $5,000 by mortgage upon her separate property in Toledo, Ohio, and that the money should be used by Taylor as a payment on his contract with J. E. Crosby and wife for the purchase of 30 sections of land in Sherman county, Tex. The seven sections of land in controversy were included in the 30 sections above named. Taylor and his wife, the appellee . herein, entered into an agreement at the time of raising the $5,000 on plaintiff's property in Toledo, Ohio, to the effect that such money should be used by Taylor in first repaying himself the $1,000 he had paid for the option on the Crosby land, and the balance to be used as payments on said purchase of the 30 sections of land, and the title should be so taken as to require the signature of appellee, Mrs. Hines, and that it be in her name. That $4,000 of the money obtained upon the mortgage was applied direct to the payment of the land, and $1,000 was paid Taylor to reimburse him for the sum paid by him on the option from Crosby, and that Taylor used no other money in purchasing the land. The jury also found that appellee was to own the land and J. W. Taylor was to have only an undivided half interest in the profits, if any, to be derived from the sale of the land, after paying off the $5,000 secured by the Toledo, Ohio, property belonging to Mrs. Taylor. We think there is evidence in the record which will support the findings of the jury, and we would not feel justified in disturbing the verdict on that ground.
The parties agreed to the following facts, which are set out in the judgment of the court:-
“(1) It is agreed that the 30 sections of land described in plaintiff’s fourth amended original petition; and which include the seven sections of land which are involved in this suit, were, on the 10th day of. July, A. IX,-1876, together with other lands, patented by the state of Texas to J. F. Crosby, as as-signee of the Texas New Orleans Railway Company, and that the same remained the property of said J. F. Crosby, or the said J. F. Crosby and his wife, until conveyance was afterwards made by Crosby and wife, as hereinafter agreed upon.
“(2) That thereafter, on the 16th day of June, 1900, while the said J. F. Crosby and wife, Josephine Crosby, were still the owners of said 30 section of land, they entered into a written contract with the said defendant J. W. Taylor by which they agreed to sell and convey the lands for the sum of 50 cents per acre or $9,600 in the aggregate; said Taylor paying at that time in cash the sum of $1,000, the balance to be paid within 60 days thereafter, but the time was afterwards extended by mutual agreement. That the said Taylor fully paid the balance due for said 30 sections of land prior to November 20, 1900, with the exception of $500, which was agreed to be reserved to cover whatever taxes might be due on the land, and that on November 20, 1900, said Crosby and wife executed to the said Taylor a general warranty deed, conveying said 30 sections of land; the deed to be introduced in evidence.
“(3) That said agreement of June 16, 1900, provided that a failure to pay the balance due of the original purchase money in the time provided for in said agreement should forfeit the $1,000 paid at the execution of said contract to the said Crosby and wife; the exact provisions will be shown by the evidence.
“(4) That J. W. Taylor, defendant herein, and the plaintiff, were legally married on June 28, 1900.
“(5) That on September 15, 1900, said defendant Taylor and plaintiff executed a mortgage upon plaintiff’s separate real estate situated in Toledo, Ohio, and also executed two notes secured by said mortgage, one for the sum of $1,500, and the other for the sum of $3,500, and realized the sum of $5,000 therefrom, and same was turned over to said J. W. Taylor.”
The law controlling the issues as above set out was discussed by the Supreme Court when this case was before that tribunal. Sparks v. Taylor,
/The next question presented is whether Meador Bros, are purchasers in good faith for value and without notice of appellee’s equity, as found by the jury. The parties, with reference to this branch of the case, entered into the following agreement, which is incorporated in the judgment;
*917 “(6) That the said J. W. Taylor was in the year 1898 upon his voluntary petition, adjudged a bankrupt by the United States district court at El Paso, filed his schedule of assets and liabilities in said proceeding in accordance with the bankrupt law and rules, and that in said schedule he scheduled no assets, but scheduled liabilities aggregating about $40,000, and that John Sparks did not appear in his schedules as one of his creditors. The defendant reserves the right to object to this as material and a part of it as hearsay.”
“(9) On the 15th day of February, 1902, the said Taylor through his duly authorized agent, O. F. Rudolph, entered into a contract in writing with the defendants T. S. and S. D. Meador, by which he agreed to execute to the said Meador Bros, a deed, with the usual covenants of warranty conveying said sections of land in controversy, for the price of $1.50 per acre, less 29 acres deducted on account of the right of way to said Rock Island Railroad over two of said sections, $100 of said purchase money being paid in cash by Meador Bros, to said Rudolph upon execution of said contract; and by said contract said Taylor was to furnish an abstract showing a good and perfect title, free from defects, to be approved by the attorneys selected by Meador Bros., and, upon said abstract being furnished and approved by said Meador Bros, bound themselves to send to the Low-den National Bank at El Paso, Tex., the sum of $5,659.27, in exchange, to be paid to said Taylor upon his depositing in said bank a warranty deed to said Meador Bros., in compliance with said contract, said sum being the amount of unpaid purchase money going to said Taylor; the remainder of said purchase money, less the sum of $49.14 taxes upon said land, assumed by the said Meador Bros, and less $22, expense of surveying, and the sum of $968.09, according to said agreement, to be paid direct to the said-Rudolph, as commissions due him from said Taylor upon said sale. The terms of the instrument to be corrected by reference to the instrument itself.”
“(11) That on February 22, 1902, said Rudolph, having completed the abstract of title to said seven sections sent to Meador Bros., at St. Jo, Tex., together with a prepared deed to said Meador Bros, to be signed by said Taylor for the approval of said Meador Bros, and their attorneys, and with said deed and abstract inclosed the following letter: ‘Stratford, Texas, February 25th, 1902. Lowden National Bank, El Paso, Texas— Gentlemen: Inclosed is a warranty deed to be executed by J. W. Taylor, conveying seven sections of land in Sherman county, to T. S. and S. D. Meador. Also inclosed is a bank draft, $5,659.27, hy your favor which you are to transfer to the account or order of the said J. W. Taylor on his execution of said deed. The deed you will then transmit at once either to Meador Brothers, St. Jo, Texas, or to me at Stratford, Texas, for record, as the Meador Brothers may indicate below on this page as being their wish. The deed is purposely drawn by previous agreement of all parties to make the consideration read one dollar and fifty cents per acre. Very respectfully, O. F. Rudolph, Agent for J. W. Taylor.’ This letter was in the handwriting of said Rudolph. Meador Bros, had the abstract of title examined by an attorney of their selection, who approved the same, and on or shortly' before the 10th day of March, 1902, procured exchange from a bank at St. Jo, Tex., upon the Seaboard National Bank of New York, payable to the order of Lowden National Bank, for $5,659.28, and placed said draft, the above letter, and deed in an envelope, and mailed it to said Lowden National Bank, but before doing so wrote the following at the bottom of said letter: ‘Send Deed to Meador Brothers, St. Jo, Texas. Meador Brothers.’ Said letter, draft and deed reached the Lowden National Bank on or shortly before the 13th day of March, 1902, whereupon the said bank forwarded the draft to New York for collection and had its proceeds placed to its credit in the Seaboard National Bank, and Meador Bros, never at any time appeared upon the books of said Lowden National Bank.
“(12) Said J. W. Taylor, at Stratford, Tex., for the purported consideration of $6,008.85, executed a deed conveying said seven sections of land to John Sparks, which deed purported to be dated, acknowledged, and recorded in Sherman county, on the 1st day of March, 1902, which deed will be introduced in evidence.
“(13) On the 18th day of April, 1902, said Sparks, at the request of said Taylor, executed and acknowledged, for a recited cash consideration of $6,008.85, a deed, conveying said seven sections of land to said T. S. and S. D. Meador, and on the 19th day of April, 1902, mailed said deed, together with the deed from Taylor to himself, to said Lowden National Bank, and with said deed inclosed a letter, directing the bank to deliver to Meador Bros., when the amount named as consideration of the deed, $6,008.85, was placed to his credit in said bank. The deeds and letter reached the Lowden National Bank on or shortly before April 26, 1902; these deeds as well as the deed from Crosby and wife to Taylor were in the usual form, and contained usual covenants of warranty.
“(14) On May 9, 1902, said Sparks wired said bank to send him by mail New York Exchange for $6,000, in response to which'instructions the bank, on the 10th day of May, 1902, ' mailed him New York Exchange for $5,651.57, the amount, less exchange, previously deposited, to be paid to J. -W. Taylor on the sale to Meador Bros, f
“(15) On March 1, 1902, the plaintiff filed in the district court of El Paso county a suit for divorce against her husband, J. W. Tay *918 lor, and for an adjudication of tlieir property rights, including the rights claimed by them in and to the land in controversy. That citation was issued in said cause in El Paso county, where the defendant Taylor then resided, on March 1, 1902, and said citation was served on said J. W. Taylor on March 4, 1902, in El Paso county, Tex. That an injunction was granted and issued in said cause on March 1, 1902, restraining said Taylor from handling and disposing of the land mentioned in the deed from Orosby and wife to J. W. Taylor, including the seven sections of land involved in this suit; or the proceeds of such lands, and said injunction was served on said J. W. Taylor in El Paso county at 10 o’clock a. m. on March 4, 1902. That said divorce suit was dismissed by plaintiff on the 8th of October, 1903, the judgment reciting that the dismissal was without prejudice. That afterwards, on the 9th day of April, 1904, the plaintiff filed a new suit for divorce in said court against said J. W. Tay-Idr; the petition alleging the same allegations for divorce as were alleged in the first suit, and praying for an adjudication of the property rights between the plaintiff and defendant, including the property rights in the lands involved in this suit. That said cause was tried, and resulted in a judgment, on the 12th day of October, 1905, granting to the plaintiff a divorce from the said J. W. Taylor; the judgment therein reciting, among ojiher things, that no demand was made for the adjudication of the property rights of the parties, and that same was waived without prejudice to the rights of the parties in any suit then pending or thereafter to be brought.”
The parties also agreed that J. W. Taylor, prior to the 15th day of February, 1902, sold all of the 30 sections of land, except the 7 sections in controversy, to various parties, giving the names of the purchasers, price paid, and the amount in cash and in notes. Mrs. Taylor joined J. W. Taylor in the deeds to part of the land so sold, and in part she did not join in the conveyance, but the deeds were executed by Taylor alone.
The Supreme Court further held in this case that there was no evidence whatever which tends to show that Meador Bros, had notice of the claim of Mrs. Hines prior to the'26th day of April, 1902. We have gone over the record carefully, and we fail to find any fact before April 26, 1902, that would place appellants upon notice that Mrs. Hines owned the equitable title to the land, or any fact which would put them upon inquiry. The record title stood in the name of J. W. Taylor, husband, who had been selling the land previous thereto out of the 30 sections originally purchased by him from Crosby; he had conveyed all but 7 sections, some 23 in all. In some of the conveyances Mrs. Taylor had joined him in the conveyance, and in others she had not. Taylor listed the 7 sections of land in question with one Rudolph for sale, which he advertised in the Dallas News. Seeing this advertisement, appellant wrote to the agent, Rudolph, with reference to the price and situation of the land. They had known Rudolph some years previous,, and the testimony indicates they were on friendly terms. This correspondence led to T. S. Meador, one of the firm, visiting Sherman county, to examine the land. While there he entered into a contract with the agent, on behalf of his firm, to purchase the land, and paid thereon $100 as earnest money. In compliance with a contract then made, an abstract was afterwards furnished Meador Bros., which they delivered to their attorneys for a legal opinion as to the title. The attorneys pronounced the title good. Meador Bros., in the meantime, however, requested that Taylor have his wife sign the deed, but was informed that she was sick at that time in New Mexico, and could not do so, and that Taylor alone would sign the deed. Their lawyers told them the title was good without her signature. They, however, procured an affidavit from J. W. Taylor that he owned the land, and that no one else had an interest in it. After making the investigation as to the title of.the land as above *919 stated, they forwarded, by draft, the purchase money with the exception of the commission due Rudolph, to the Lowden National Bank, El Paso, Tex., which had been selected by Taylor to receive the money. Mrs. Hines was in Sherman county but once before the contract was entered into with Meador Bros.; and, if she ever told or intimated to any one while there that she owned an equitable title to the land, or had any interest in it, the record does not show that fact. In so far as this record shows, no one in Sherman county knew of such equity who could have given ¿ppellant any fact which would have led to the knowledge of such equity, unless it was the husband, J. W. Taylor. His sworn affidavit was made at the request of appellant, and is, “there was no other legal claimant besides himself to the land or any of them owned by him in Sherman county.” We do not find a fact in the record that would charge the appellants with notice, or which would require of them to make further inquiries. The jury found that prior to February 15, 1902, appellants had no notice that appellee had or claimed an interest to the seven sections, hut they do find appellants had such notice prior to April 26, 1902. The Supreme Court held there were no facts charging appellants with notice prior to April 26, 1902, and we believe this court, as well as the trial court, should be governed thereby.
“Constructive notice includes all other instances in which the information thus directly communicated cannot be shown, but is either conclusively presumed to have been given or received from the existence of certain facts, or is implied by a prima facie pre sumption of the law, in the absence of contrary proof.” 2 Pomeroy!s Equity, 593.
“A purchaser or person obtaining any right *920 in specific property is not affected by vague rumors, hearsay statements, and the like, concerning prior and conflicting claims upon the same property, and the reason is that such kind of reports and statements do not furnish him with any positive information, any tangible clue, by the aid of which he may commence and successfully prosecute an inquiry, and thus discover the real truth; his conscience is not therefore bound.” Id., § 597. Wethered v. Boon,17 Tex. 143 ; Martel v. Somers, 26 Tex. pp. 559-560.
There should be facts and circumstances shown by the evidence, called to the attention of the proposed purchaser, which, .if followed up with reasonable diligence, would lead to the truth. Bile’s statement does not rise to the dignity of a rumor or hearsay. It is but a vague, indefinite, and intangible opinion formed in his mind, upon which he advised. The facts and circumstances then surrounding the parties • clearly show it to have been such, and had for the expression none other. It will be noted that Eowler is unable to state with which one of the Meadors the conversation occurred, or with any degree of definiteness when it occurred. T. S. Meador talked with Bile in February. Bile, when called as a witness by appellee, testified as to that conversation and what it was, which is not in the slightest degree the one given by Fowler. S. D. Meador had a conversation with Bile a few days after this suit was filed. This conversation, as given by Bile, in some particulars resembles the one testified to by Fowler. This evidently is the conversation which Fowler was trying to give. We think it is clear the jury so believed, for they found Meador had no notice prior to February 15th, the date of the contract entered into by Meador Bros, with Rudolph to purchase the land; but it is suggested by appellee the jury could have found this conversation occurred on the 15th. The jury did not so state in their verdict, and we see no fact which would have authorized them to have so found. Bile’s testimony is that the. conversation was while the surveying was being done, and all the facts indicate that after the surveying, and after the examination of the land as to its location and quality, the contract was executed, and T. S. Meador left for home. There was but one conversation at that time testified to by Bile and Meador. We see no fact which authorized the jury to say it did not occur before the 15th, but did occur on or after. We will not attribute to the jury that they found notice, prior to the 26th of April, 1902, upon this vague and uncertain testimony of Fowler, and upon Bile’s vague and intangible advice or opinion. The jury evidently. did not believe the evidence of Fowler, and found no notice to Meador Bros, before February 15th. /
Mrs. Hines, formerly Taylor, brought and
*921
filed suit for divorce against lier liusband March 1, 1902. The jury found that the deed was actually executed by Taylor to Sparks on the 3d of March, 1902, one day before service of citation in the divorce suit, which was had March 4, 1902. The Supreme Court has held that notice by lis pendens applies in divorce suits. Berg v. Ingalls,
The third, fourth, eighth, fourteenth, eighteenth, twentieth, twenty-first, twenty-second, and forty-fourth assignments of error are sustained. We think judgment should be rendered for Meador Bros, for the land in proportion to the purchase price paid by them for the land prior to April 26, 1902, which was the amount deposited in the Lowden National Bank, and to that extent they are bona fide purchasers of the land. The judgment of the lower court is therefore reversed, with direction that judgment be entered for Meador Bros, for the land to that extent, and under the direction of the Supreme Court in
*922
Sparks v. Taylor,
We think it unnecessary to discuss the cross-assignments further. In adjusting the equities the trial court can properly dispose of the taxes paid by the respective parties. The case is reversed, with directions to adjust the equities under the rules given by the Supreme Court and in accordance with this opinion. The costs of both appeals, Nos. 496 and 497, will be adjudged against the appel-lee, Mrs. Hines. Reversed and remanded.