28 S.W. 356 | Tex. App. | 1894
Lead Opinion
Appellants are husband and wife, and brought an action of trespass to try title against appellees for a lot in the town of Eagle Pass. The case was tried without a jury, and judgment rendered for appellees. The facts are as follows: The land in controversy was in 1883 given by her half-brother to Mrs. Watkins, and in the same year appellants, by giving a valid builder's lien on the lot, obtained material amounting to $3000 from the Eagle Pass Building and Loan Association, and put the same into improvements on the lot, which, when completed, were moved into, and became their homestead. In 1887, the shares in the association having nearly become *429 mature, appellants, desiring to retain the same, executed a warranty deed properly acknowledged to the association, conveying to it the lot and improvements for the debt, the agreement being that the property should be reconveyed at some future time. In May, 1888, over fifteen months after the execution of the warranty deed by appellants, the building and loan association reconveyed the property to appellant E.L. Watkins for $3000, which was evidenced by promissory notes, and a vendor's lien was reserved in the deed to secure payment of the notes. The notes were sold to Sproull, who died, leaving as his executrix and sole legatee his wife, Harriet F. Sproull. Mrs. Sproull foreclosed the vendor's lien on the property, and the same was sold by order of court, and was bought in by Mrs. Sproull, who afterwards sold the same to F.A. Vaughn. Vaughn employed an attorney and had the records thoroughly examined before he bought, and had no notice, actual or constructive, of any claim whatever against the property. The deeds were all recorded promptly.
There is no question raised as to the mechanic's lien which was given in 1883 not having been a valid one, drawn and acknowledged by statute; and after this lien had been acquired and was in full effect, any contract made in adjustment of the equities existing between the parties, even though it involved the execution of a lien on the home stead, would be permissible, and would be enforced. Or in other words, the mechanic's or builder's lien having been once legally created, any subsequent conveyances made or liens given with the purpose and design of meeting the demands of the original lien, would be legal and permissible. Lippencott v. York,
But admitting the invalidity of the transaction between the parties down to Vaughn, yet under the facts of this case, we are of the opinion that appellee Vaughn was an innocent purchaser for value without *430 notice, and his title should be sustained on that ground. Vaughn testifies, that he consulted an attorney as to the title, and was advised that it was a valid title. The attorney carefully investigated the records, and upon the records was based the opinion given by him to his client. F.A. Vaughn, one of the appellees, swears, that he had no actual notice whatever of the facts and circumstances surrounding the transactions between appellants and the building and loan association. Whether the builder's lien was recorded or not is not shown by the transcript, but if it was recorded, taken with the warranty deed given to the association in 1887, it would evidence nothing but a payment of debt by this means, and if it was not recorded, then there was nothing of record but a notice of a sale to the association and a subsequent repurchase by appellants, the vendor's lien being reserved in the last transaction to secure the purchase money. There was a lapse of time of over a year between the deeds from and to appellants.
It is true that appellants were in possession of the premises when the purchase was made, but this, "in the matter of notice, is to put a person desiring to purchase upon inquiry, and it has no effect in determining what the inquiry shall be, or of whom it shall be made." Eylar v. Eylar,
Appellants claim that the sale made by the executrix to Vaughn was void, because it was not shown that the sale was made by the executrix by order of the court in which the estate was being administered, *431 or that the sale was ever reported to or confirmed by the court. No objection was made to the admission of the deed on this ground in the lower court, and had it been made, it would not have availed, as the deed of the executrix and the findings of the judge show that Mrs. Sproull was not only the executrix but sole legatee under the will of her husband, and she had full authority to sell the land. None of the assignments of error are well taken, and while we may differ with some of the conclusions both of law and fact found by the trial judge, yet the final conclusion is correct, and the judgment is affirmed.
Affirmed.
Addendum
The notes upon which suit was brought and judgment rendered in favor of Mrs. Sproull, and to obtain payment of which the property was sold under execution, was the same debt that was due the building and loan association under the builder's lien. It was the same debt in different garbs, and was never paid. It is clearly shown by the proof, and it was admitted by appellants in their testimony, that the building and loan association had a valid mechanic's lien on the property to secure the sum of $3000, and this is not questioned in the brief of appellants. It is too late to spring it on a motion for a rehearing.
It is contended, that as the proof showed that Vaughn paid $1650 cash and gave a negotiable promissory note for $1000 for the property, this would not be a payment of such value as would constitute him a purchaser in good faith for value. In the case of Cameron v. Romele,
It is urged that Mrs. Watkins was a necessary party to the foreclosure of the lien upon her homestead, no matter whether it was in the form of a vendor's lien or otherwise. At the time of the creation of the debt to the building and loan association, the place had not become a homestead. The lien attached before the homestead character, and the assignment of appellants is not well taken.
There is but one plausible theory, and that is not presented by appellants, upon which any argument could be predicated; and that is upon the ground that the land, being the separate property of Mrs. *432
Watkins, remained her separate estate through the several mutations of the lien, and that therefore she was a necessary party to the foreclosure proceedings. If this position should be well founded, still the result would be the same, as the evidence shows that he was an innocent purchaser for value, without notice, and, taking the record, there was nothing to indicate that Mrs. Watkins had any interest in the land after she conveyed it to the building and loan association. The fact that she signed the last note with her husband did not show that she had any interest in the land. On the question of notice, in addition to the authorities cited in our former opinion, we would call attention to Ranney v. Miller,
It is contended that the attorney of Vaughn, having been the attorney of the building and loan association when the deed was executed, had notice that the deed from appellants to the association was in reality a mortgage, and thus through him notice was brought home to Vaughn. But the attorney swore positively that he drew the deed and thought it was a bona fide conveyance of the property, and had no notice whatever that there had been any promise to reconvey the property. We doubt that the possession of appellants was sufficient to put Vaughn upon inquiry, as is intimated in our former opinion, for the reason that the record indicated that they were in possession by virtue of the deed to E.L. Watkins in which the vendor's lien had been reserved. Vaughn bought from Mrs. Sproull a few days after the foreclosure sale; and about the time of his purchase, when he spoke of buying or of having bought the place, no claim whatever was set up by appellants.
Except so far as modified by this opinion, we adhere to our former opinion and the motion for rehearing is overruled.
Overruled.
JAMES, Chief Justice, did not sit in this case.