1 Posey 253 | Tex. Comm'n App. | 1880
1. The first assignment presents the proposition that the title of a bona fide purchaser would be destroyed by the subsequent registration, and before the registration of his deed, of the prior claim or title.
By the registration laws, “ all bargains, sales . . . and other conveyances whatever of any lands, tenements, . . shall be void as to all creditors and subsequent purchasers without notice, unless they shall be acknowledged or proved, and lodged with the clerk, to be recorded according to the provisions of this act.” Pas. Dig., 4988.
Such instruments “ shall take effect and be valid as to all subsequent purchasers for a valuable consideration without notice, and as to all creditors, from the time and when such instrument shall be so acknowledged, proved or certified and delivered to such clerk to be recorded, and from that time only.” Pas. Dig., 4994.
Under this law the lien fixed by a creditor by the levy of an execution upon land has been sustained against a prior unregistered deed. Grace v. Wade, 45 Tex., 527; Simpson v. Chapman, 46 Tex., 564; Grimes v. Hobson, 46 Tex., 419; Borden v. McRae, 46 Tex., 416. In the litter case it is said the protection would extend against such deed registered between the levy and sale.
The subsequent purchaser without notice and for a valu
Taking these decisions as affording the evidence of the construction of the statute, we cannot regard it an open question whether the title obtained by. a bona fide purchaser is subject to be defeated by any subsequent act of the holder of the unregistered deed.
There is nothing in the terms of the law nor in any decisions upon it which countenances the view that the unregistered deed, declared by the statute void as to such purchaser, can be validated as against him by securing its earlier registration.
2. The documents constituting the claim of title of the plaintiff to the land were at least contracts “ in relation to lands,” and may have been recorded. Pas. Dig., 4989. That they wére but evidence of an equitable claim to the land, and not of equal dignity to a deed, did not give immunity against the rights of the subsequent purchaser.
3. Granting the fullest equity to plaintiff, the legal title in the land did pass by Hanning’s deed to Hogan, who, on such assumption, took as trustee of plaintiff; still the conveyance by him to Anderson, for a valuable consideration without notice, passed the legal title discharged of the trust. Wethered v. Boon, 17 Tex., 146, 147; Guilbeau v. Mays, 15 Tex., 415; Hawley v. Bullock, 29 Tex., 222; Perry on. Trusts, sec. 218; 1 Story’s Eq. Jur., sec. 46c; Adams on Eq. (5th Am. ed.), p. 191; Fry on Specific Per. (2d Am. ed.), p. 389.
It is doubtful whether, under the testimony, plaintiff was entitled as against Anderson to specific performance in the absence of his proof of good faith. She did not show by testimony good against him that she had paid a valuable consideration in her purchase, which seems a necessary part
There being no error in the record, the judgment below should be affirmed.
Afeiemed.
