*1 REPORTER 152 SOUTHWESTERN trespass PRESLER, a suit J. This is try Tobin, appel title, by to lant, against W. instituted J. et al. TOBIN v. BENSON E. W. D: Benson and W. (Court Appeals Oct. of Texas. Civil city involving 1913.) the title 45 lots Rehearing, to about 1912. On Jan. by plea Appellees a of Lubbock. answered 231*) 1. and Purchaser Vendor —Bona they specially guilty, of not Eide Purchaser —Notice. except a Purchasers whose deeds purchasers innocent valuable considera for of title source deed in to the common tion, tried be without notice. The case was prior registration of were recorded judgment jury, fore the court rendered, a without of title earlier deeds from the common source they might purchasers, were innocent since giving Freize 27/4o try deraign tle both under the their source of ti- title and an action to defend Benson of the land V40 and under controversy. judgment appellant From this quitclaim of the common deeds back assignments, appealed, has various or both. cases, necessary consecutively Vendor and [Ed. Note.—For other see not con to be here Dig. Dig. Purchaser, 231.*] 513-539; § Dec. §§ Cent. sidered, contends, first, that the court erred judgment rendering appellees, claim for Appeal — (§ 934*) 2. and Error —Review they were not bona fide Questions of Fact —Inferences. for valuable consideration without Every legitimate the evi- inference from indulged judgment they pure quitclaim dence will be claimed under title of the trial court. Bedford, deeds, executed Appeal cases, [Ed. Note.—For alleged claims, whom also Error, 934.*] Dig. 3777-3781; Dig. § Cent. Dec. §§ long having been executed passed the title Rufus Bedford had Vendor and Purchaser —Bona appellant by previous conveyances; sec — — Fide Serv Purchaser Consideration judg ond, rendering court erred ices. purchaser, taking A a ment for in Freize for of the lots 27/4o legal suance of a services to be contract controversy, refusing judg to render vendor, duly rendered to ren- which were therefor, purchaser ment behalf of dered at some labor and ex- pense purchaser to himself was a for valuable tending that said Freize was not an inno notwithstanding consideration, pay deed to him. his failure purchaser ground cent on the stipulated back taxes as in the vendor’s paid that that he a valuable consid eration, only paid cases, §§ see Vendor and Purchaser, Dec. Dig. 567-569, 571-576; by Cent. him was the surrender and cancellation Dig. § against grantor two notes held Keys, E.H. and further contends that said Rehearing. On was not an innocent be (§ 237*) 4.Vendor and. Purchaser —Bona — cause there was no evidence that said de Fide Purchaser Sur Consideration render of Notes Barred Limitation. paid fendant a valuable consideration before purchaser A from a common source of Appellant notice title. also title deed dated March without rendering contends that the court erred in notice deed not recorded until appellee Benson, surrendered and canceled notes executed stated for four-year vendor and barred pur the effect that he was not a bona fide Ecld, limitation in that while an owner chaser for a valuable consideration without surrendering debt is not bona against previously convey purchaser notice as the title value, thereby fide since he was placed in no appellant, claiming worse condition than he was be- ed to the evidence fore as he had appellee’s vendor, shows that H. E. yet placed where he is in a worse condition agreed give Keys, before, any security than he was or surrenders deed; payment, also that said extends the Ben or if the debt limitation, has been barred the statute of pay son did valuable consideration. purchaser is a for valuable and Appellant also contends that purchaser yielding up hence the action giving of the lots in knowledge claim, 7/40 of an adverse so barred, controversy, that his action on the thereof, notes was and to Benson 0/40 changed a position worse, for the and was error, in that the evidence showed that said for a valuable consideration. obligated pay themselves to [Ed. Note.—-For other see Vendor and controversy back taxes on the lots Purchaser, 237.*] Dig. 577-579; Dig. Cent. expressed the consideration agreed upon to them of Appeal Court, from District Lubbock Coun- March the lots were delin ty; Spencer, Judge. W. R. quent from 1891 and the taxes then Trespass try title W. J. Tobin amounted to $100 in said lots % Judg- W. D. Benson and another. interest, penalty, costs, besides and that defendants, plaintiff appeals. ment for paid by appellees the same were never so as Affirmed. grantor liability to relieve their there Klett, Lubbock, appellant. Bean & on, and that lots were not worth ex W. D. Lubbock, Falls, ceeding Sehenck, each, Benson and W. F. both $10 are Kay, and Mathis greater & of Wichita therefore not entitled to recover a portion lots than for. Dig. otlier * For cases see topic same Key-No. section NUMBER in Dec. & Rep’r Series & Indexes *2 y. Tex.) TOBIN BENSON
the
Tex.,
ranty
Keys,
ranty
claims title to
in
lant, conveying
It
troversy,
of
from H.
out clause
lees
warranty,
said
to take
8, 1897,
were filed for
the
to H. E.
is
be construed
ment,
and filed for
conveying
Rufus Bedford
ranty
under
claim.
reason
istration
H. E.
junior
date, conveying
veyances
Bedford,
acquired
objected
deeds
such
March
corded the
from M.
therein named.
this
1894
pellee Benson,
nathy,
dor,
be innocent
September 26, 1904,
to
them
except
is further
quitclaim
[1 ] It
doubtful
appears
date
date
evidence deed from H.
date
the lots
following
recitals
introduced in evidence a deed of
suit,
permitted
deed
H. E.
from Rufus
May
chains
J.
hold,
Keys),
deed from E.
deed of 1894
referred to
common source of title as
deed
Appellant
27,
quitclaim
of date
to the same in date of
In other
June
July 18, 1895; third, warranty
will
May
all of
C.
date March
under which
date
from
to the effect
both under
reciting that,
5,1911.
law
executed
to
to be
from
same
at least
Cobb to
the
appellees.
Abernathy
in the deed
place
deed
with
Keys,
lie
from
appellant’s
above
of title.
thus be seen that
were recorded
chain of
all
appellees
strictly
record
of date
the
July
why
proportion
whom
as the
the lots
to said H. E.
and one
September 30,
controversy
back of the common
all of his
'1911,
record in Lubbock
which of said
deed
the evidence
words,
also introduced
date,
parties
from Rufus Bedford to
H.
also a
merit
observed
deraign
and in
Bedford to
Rufus Bedford to
lots in
Appellant
lots,
or under either or
whether
appellant
(from
appellees
26,
and recorded March
from Cobb to
May
21,
exception
title,
September
We therefore conclude
to W.
also
appellees
the said
J.
the
under the
Keys
chain
from
quitclaim
1894; second,
made
“This
executed
because
to this
lieu of one
1907,
from M.
title and defend
stated
controversy
recorded the same
right
Rufus Bedford to
date
the contention of
controversy
16,
viz.:
that H. E.
perceive
property
appellees
quitclaim deed,
E.
also introduced
Rufus Bedford
Cobb to
to J.
quitclaim
appellees’
of date
should not be
all
Keys,
connection,
deed made
May 1,
H. E.
conveyances
of the war
H. E.
deed
controversy sideration
considering
First, war-
title,
deeds thus
of the con
me to the
deed
execution,
appellant
the
H.
G. Aber-
recorded
both
grantees
no valid
deed
interest
and re-
of date
county,
in con-
certain
special
should
cannot
March erence.
Appel-
source
H. E.
under
Cobh, warranty
Keys,
while
claim
with-
judg-
et al.
1911,
Keys
Keys terests in said
from
war-
deed that this was the deed intended
deed
both
ven
reg
ap- soever
ap
in
of
it
heirs
February,
misplaced
the
said
heirs
all and
all
pearing
the
granting
releases,
and interest
cifically
bind
ministrators,
paid by
existing indebtedness,
deed
es thereto
support
prior
said W. E. Freize
under
sideration
red
tion,
said W. E. Freize
same
further of
evidence,
16 S. W.
Tex.
their
they
unpaid back taxes due from his
Keys, and, second,
ed
plation
Dougal
It
tive,
ered
find,
first,
eration claimed
to whether the
ent,
ence
Stanley
determination
dence,
promissory
appears from
to,
above
grantor
H. E.
property
this
had no
a valuable consideration within contem-
as to the
ourselves,
of the unrecorded chain of
separately
is
deed
While
unrecorded
from
surrender and cancellation
or
me.”
appellant
we are
by Keys,
lawfully claiming
singular
of the statute for their
singular
set
as follows: “To have and
either of
from the
It is also
thorough
clause
and
evidence that said back
assigns, against
that at the time
assigns
any
phase
12 S.
and
deed of
1896,
Fryer,
rendered
Keys,
described
made Bedford to
given by
Hamilton,
paid by
out,
claim to
indulging every legitimate
Abernathy
Keys,
to warrant and
quitclaims
notes held
never
any way
conveyed.
opinion,
only
property, and,
our
the deed in
W.
constrained to hold and so
the habendum clause of said
which
evidence in
as to each of
appellees
the
claims. This leaves for our
on or
being part
by
under whom he
3 Mo.
forever;
title
the evidence that
Garrett v.
and W.
examination of
date
either
have never in
evidence
to
each
the ease
heirs,
him is
lots
thereof, by,
the further
rights
him for the
premises,
recorded;”
property
acquired by appellant.
evidenced
about the 24th
deed has been lost
assumption
15 Am.
and so
W. D.
deed, bargains,
property against
belonging,
S. W. 602.
July 26, 1894,
is
every
all his
actual or construc-
Stone,
premises
executors and
or either of them
appellees
noted
to both
and we do
We further
and
22 Am. Dec.
or
not such as
controversy, spe-
D.
somewhat differ-
question
trial
Christopher,
will
forever
together
to
Benson,
Keys
find
person
respective
appurtenanc-
it
right,
taxes
that,
controversy
title,
through
holds,
the consid-
vendor
be consid-
claim
court
considera
Rep.
fairly ap-
the
unto the
appellees
from the
said
one
unto
acquired
unsecur
the con
the evi
the con
to
We
certain
hereby
defend
day
whom-
under
refer
while
infer
their
sells,
their
title,
with
hold
only
else.
850;
458;
was,
pre
and
ref-
will
find
the
the
are
ad-
in-
or
of
as
64á
152 SOUTHWESTERN
REPORTER
deed to the land
A. 600.
his
ficient
ease of
W.
Dunlap
without
denced
voluntarily giving
be left in a worse condition
of Alstin v.
lation and
gave up
considered a valuable
deed, and,
title, appellee
tion,
ness
something
Keys to
right to
the notes
Ereize in his
ly
and we do not understand
tend that either
payment
after
stitute a
insists
right
and that
evidenced
notice of
reply
Bonner
of this contention cites us to the
in
compensating
et al. v.
31 Am. St.
It occurs to
himself to
his said
recover on the
to
that,
valuable
of value
evidencing
if
asserting
surrender of them
them
Cundiff,
recover
these taxes or
appellant
to
able brief in this case earnest
had been lured into
appellee, having
because of the
Green,
this
as a consideration for
notes,
the notes and
Grigsby,
become
Rep. 48,
consideration.
them,
us,
52 Tex.
mere
or
upon
the
contention
consideration,
is allowed
consideration for his
however,
giving
notes the indebted
indebtedness from
therefor,
assumption
84 Tex.
had
Fed.
barred
title
that the cancel
than before
should
laches of
notice
thus
parted
surrendered
the case of
that
is that
and to
permitting ing judgment
to recover
he would
debt
*3
Appellee
payment
here
lost
8 C. C.
and in
to con he surrendered the notes.
limita
in ex
a suf
of his
of the clude that
with street v.
case
evi
the
ap
his be
be
in
S.
record to the
ing
Keys
from
him'
gal
755; McKamey Thorp,
v.
6 Tex. Civ.
Maroney,
ern
Pac.
pellant,
Caviness v.
S. W.
S. W.
not deemed valuable in
have been
Scoggin
statute,
authority
debtedness,
being
Seale,
here reversed and
Rep.
services to be
matter of
any portion
Gro. Co. v.
of his
As
S41; Buckley
the cancellation of a
835;
v.
that the trial court
which is
Manning,
to the
28 S. W.
23 Tex. Civ.
in
in
in this state such consideration is
evidence that
interest in
Mason,
App. 633,
and that
Webb v.
Black,
pursuance
L.
49 lots
respect
in favor of said
perfecting
R. A.
Alleman,
of said
46 Tex. Civ.
rendered
accordingly
67
146;
33 S. W.
v.
rendered
to said
Burney,
25 S. W.
the lots
Runge,
(N.
of a contract
contemplation
App.
the
lots,
61 Tex.
Shoe Co. v.
Benson,
said
81 Kan.
We therefore
661,
S.)
to
erred
great weight
appellee
appellee Freize,
appellee
136 S. W.
712;
in
70 Tex.
in
and that said
Keys’
App.
said
done. Over
4 S. W.
in
favor of
question by
it
represent
in
56
shown
Swenson
Keys
480,
appears
title of
Huff v.
render
Lyons,
should
Freize
S. W.
West
248;
533;
con
106
103
the
ap
le
in
to
in
7
versed
we
valuable
the
contemplation
der
er
consideration
stitute
edness that
tofore rendered
and
part
tions
that
had
had been executed
question, and
that as
tice
from
lee for
these
him to their
and
each, bearing
viding
chaser
chaser,
registration
and .extended
statute
an antecedent debt
ered
fide
ing
ute as such. As to whether
able
the
authority
court
held
spring
protection
acts of this and other states and
of the
courts
purchaser
appellant’s
presented,
canceling
of our
a bona
duly considered,
Appellee
Keys (the
notes were barred under the
and rendered the
registration
and the
him an innocent
he,
of limitation
a valuable
and entitled to
notice
cancellation of
Freize that
error
that
consideration
consideration,
Freize not to
to sustain the character
rehearing, and,
seems to
10
prior
value within the
differ,
opinion affirming
protection
statute.
fide
in his
per
paid
is therefore here overruled.
of the
10
investigation
within the
of
no
two notes for about
motion
common
our former
same was not
per
cent, attorney’s
this court erred
error
and,
are of
favor
for them
was not a bona fide
statutes for
actual or
favor,
property in
statute
cent,
in his
Upon
appeared
we are of the
him
is a
statute,
protection
within
that he
a
Freize have filed
and Was entitled
while the
complaining
appellant,
be
source) the lots in
purchaser
meaning
but
Benson
being
for value for such
question
interest,
our
Freize.
an innocent
a more
motion
by surrendering
constructive
meaning
opinion
held
contemplation this
opinion
that
their
did
controversy,
discharge
and that as
valuable
fees,
of the stat
not consid
of the low-
case
deed until
purchased
paid
weight
of record
four-year Kamey
as to the
thorough
Both
contends
affirmed
not con-
question
and re-
will en
that we is different.
of that er
opinion
holding
surren-
indebt-
respec-
having trary
of our
entitle N. Y.
Freize Sullivan,
$1,500
appel
as to able
here-
hold
such
bona
pur
pur
pro
mo-
ap-
no
ered.
ness
observed
thorities
titled
and the reason
cited.
tation has
purchaser
security
purchaser
note
tion has
this
Green,
merely
er for value. This
have no doubt he must be
the case of Steffian v. Milmo National
69
purchaser
law.
ling
of this state said: “If the law of innocent
gee
should the
ficient to
the consideration of a deed is an antecedent
has
consideration should the
debt
pert
ment he
action,
have
as a consideration for the
the claim of
cancellation
[30
It is also
extensive
has
Iowa,
indebtedness,
loose the
present
*4
precise question
last
his
weight
indebtedness will be
(as
v.
Thames
only,
This is
to be
A
60
to secure
Dillard,
extended
which is a
find
v.
debt;
in
great many
that
which he
Rep. 250];
given
since
yields
as
Fed.
editor mentions no
Notes
Notes 583, per- vendee, pre-existing Under Rev. Civ. As between vendor and art. assignee negotiable instruments mitting to maintain existing is a valuable debt un- action in his name which own better, til title is another shown which is original payee might brought, al- have
The of one of a series maturity operates purchase after of them after of all maturity. cases, Note.—For other see Bills and [Ed. NATIONAL STATE BANK OF MT. PLEAS Notes, Dig. 866-868; Dig. §§ Cent. Dec. ANT, IOWA, v. RICKETTS et al. (Court Appeals of Civil of Texas. Amarillo. 347*) (§ 7. Sales of Con —Notes—Failure Rehearing Nov. Denied sideration. 28, 1912.) Dec. registered The stallion sold as 1. Evidence registra- Evidence. —Best such was mistake described in the notes, given stallion, In an action on for a none, having star, book when he had tion in which defendant claimed that the horse was purchaser beyond damage not registered represented, correcting registration, the mistake cost W., place seller that the horse taken from his special damage. absence agent delivery purchaser, cases, Sales, other see [Ed. Note.—For Cent. actually registered in the French Draft Dig. 962-972; Dig. § 347.*] Dec. §§ Association, tending Horse was admissible as identify to over to the the horse which the seller turned Appeal Court, Deaf from District Smith objection- and was not Judge. County; Hill, D. B. ground able that the books of the as- reg- sociation would the best National Bank Mt. Action evidence of State istration. Iowa, against Pleasant, L. A. Ricketts and cases, Evidence, Note.—For other [Ed. see defendants, From others. Dig. 460-470; Dig. Cent. §§ Dec. § 157.*] plaintiff appeals.. Reversed and remanded 471*) Opinion 2. Evidence Evidence- trial. for new op Conclusion Witness. action In an on. a note claimed to have Knight Wright, & Slaton and C. D. all of plaintiff maturity, indorsed to evi- appellant. Hereford, Gilliland, Carl by plain- dence that the notes were “owned” date, tiff since a certain sent to another and at Hereford, that time were bank, properly excluded as a conclusion. HUFF, appellant, ü. J. The the National Evidence, Note.—For other [Ed. Pleasant, Iowa, Dig. 2149-2185; brought Dig. Mt. Bank of State § 471.*] Cent. topic Dig. Key-No. Rep’r * For cases see same and section NUMBERin & Am. & Doc. Series Indexes