69 Tex. 513 | Tex. | 1888
This suit was originally instituted in the court below by the appellee against A. C. Hunt, to recover on a note for about ten thousand dollars, made payable to it by Hunt, and to foreclose a mortgage executed by him to secure the note. The petition alleged that Peter Steffian was set
The nature of the controversy sufficiently appears from the-conclusions of fact found by the court below, which áre as as follows:
“1. That on the twenty-eighth of February, 1882, Peter Steffian, deceased, executed a general warranty deed to the defendant, A. 0. Hunt, for the lands in controversy in this suit; that the consideration of sixteen thousand dollars mentioned therein was recited to have been paid; that the deed was signed by said Steffian in the presence of two subscribing witnesses; that there-was an understanding between said Steffian and Hunt that said deed should remain in the possession of said Steffian until the full amount of said consideration was paid; that on May 29,1882, said Hunt paid eleven thousand dollars of the said consideration, and afterwards, on the-day of-, 1883, the further sum of one thousand five hundred dollars.
“2. That on the twenty-ninth day of March, 1883, said A. 0. Hunt was indebted to the Milmo National Bank, plaintiff herein, in the sum of ten thousand three hundred and thirty-seven dollars and ninety-six cents, which was on that day past due. That, in order to get an extension of time on said indebtedness, he offered to give the bank a lien on the land described in the aforesaid deed of Steffian to Hunt, and placed, or caused to be placed, in possession of the plaintiff the deed of Steffian to Hunt; that it was at that time generally known and understood in the community that said Steffian had' sold said land to said Hunt. That plaintiff, in consideration of said lien on said land, granted said Hunt an extension of ninety days on his said indebtedness; whereupon said Hunt, on said twenty-ninth day of March, 1883,. executed and delivered to said bank his note for said indebtedness and a deed to said land; that, while said deed was an absolute conveyance on its face, it was understood by and between said Hunt and said bank that it was only intended as a security for said debt; that at the date of the execution and delivery of said note and deed by said Hunt to said bank, its officers or agent had no knowledge or notice, either actual or constructive, that said Hunt had not paid all the purchase money for said land.
c<4. That plaintiff, its officers or agents did not, at the time of the execution and delivery by Hunt of said note and deed to said plaintiff, have any notice or knowledge that said Steffian had not delivered his said deed to said Hunt as an evidence of Ms sale of the said land to said Hunt.”
From these findings the court concluded, as a matter of law, that appellee was a bona fide purchaser for a valuable consideration without notice, and that its claim was, therefore, entitled to priority over that of appellant, and this is assigned as error. If the law of innocent purchasers be applicable to appellee’s case, we have no. doubt it must be deemed a purchaser for value. This court has held that where the consideration of a deed is an antecedent debt only, or where a mortgage is taken merely to secure such indebtedness, this is not sufficient to support the claim of a bona fide purchaser for a valuable consideration. (McKamey v. Thorpe, 61 Texas, 648; Spurlock v. Sullivan, 36 Texas, 511.) There being no new consideration, should the grantee or mortgagee lose the land or his lien upon it, he still has his debt, and for that reason is held to have parted with nothing of value. But should the mortgagee give time upon his debt as a consideration for the security, his case is different. By extending the time of payment, he yields up for a season his right of action, which is a privilege deemed of value in law. This is accordingly held by the controlling weight of authority sufficient to support the cl.aim of an innocent purchaser. (Schumpert v. Dillard, 55 Miss., 348; Post v. Embree, 54 Iowa, 14; Carey v. White, 52 N. Y., 138; Gilchrist v. Gough, 63 Ind., 576; Cook v. Parham, 63 Ala., 456; Thomas v. Rembart, 63 Ala., 561.)
But it appears in this case that, at the time of the agreement between Steffian and Hunt for the sale of the land, it was understood between them that, though the deed was signed in the presence of two subscribing witnesses, it should remain in possession of the grantor until the entire consideration was paid; and it further appears that the purchase money was never fully paid, and that the instrument was never delivered to the grantee
It follows from these first principles that an instrument which passes into the possession of the grantee without such intention on the part of the grantor, is wholly inoperative, and that a purchaser from the former acquires in law no title to the property which it purports to convey. It is accordingly held, that-even a vendee from the grantee, who has paid value without knowlege of the facts, is not an innocent purchaser in such a case. (Fisher v. Beckwith, 30 Wis., 55; Evarts v. Agnes, 4 Wis., 356; same case, 6 Wis., 453; Henry v. Carson, 96 Ind. 412; Van Ammage v. Morton, 4 Whart., 382; Fitzgerald v. Goff, 99 Ind., 28; Stanley v. Valentine, 79 Ill., 548; Harkreader v. Clayton, 56 Miss., 383; Miller v. Fletcher, 27 Gratt., 403.) The courts say that a deed delivered without the consent of the grantor is of no more effect to pass title than if it were a forgery. (Henry v. Carson, supra; Hadlock v. Hadlock, 22 Ill., 384.) We conclude, therefore, that the court was in error in holding appelleea bona fide purchaser for a valuable consideration without notice.
It does not follow, however, that appellee may not make out a case entitling it to judgment, although no effective delivery of the deed is shown. But in order to do this he must bring himself within the rules applicable to an equitable estoppel and must show that appellant’s testator was grossly negligent in permitting the deed to pass into the possession of Hunt and also* that as a result of this, some substantial injury has accrued to* the bank, by reason of the transaction, which it entered into upon faith of the deed. The determination of these questions are not involved in the conclusions of the court below, and the state of the evidence is such that we do not deem it proper to decide-them here. Should it appear upon another trial that Peter Steffian never delivered the deed to Hunt with the intention that it should take effect, then, in order for the plaintiff cor
We think also that the court erred in excluding the testimony of the witness A. L. McLane. What Steffian said to the witness when he gave him possession of the deed was calculated to show the purpose with which the act was done, and the injunction to return the paper tended to prove care on the part of the grantor to prevent the grantee getting possession of it and claiming a legal delivery. Article 2248 of the Revised Statutes, upon which the objection was based does not apply to such a case. (Gilder v. Brenham, 67 Texas, 345.) What Steffian said after the deed was recorded was not a part of the res gestee and was inadmissible; and the exclusion of these declarations would have been correct had the objection been plead upon the proper ground.
For the errors pointed out the judgment is reversed and the «ause remanded.
Reversed and remanded.
Opinion delivered January 20, 1888.