52 Tex. 416 | Tex. | 1880
The first error assigned is, that “ the court erred in rendering judgment for the plaintiff' without his deraigning from a common source, or from the government, and showing title in himself.”
The defendant Baker Williams, as shown by his own testimony, did not set up any claim to the land in controversy, but was there simply in the capacity of a nurse or attendant for the other defendant, Betsy Webster, and was thus virtually in possession under her, the real defendant.
If, however, he should be considered as a separate trespasser, the testimony further shows that he came upon the place when the same was held by Thomas Baker as lessee for the plaintiff Mann.
Plaintiff' Mann claimed under title derived through general warranty deeds from Betsy Webster herself, the other defendant. She sought simply to avoid this title, but did not deny that the title in herself was valid, and, under her warranty deed, would have been estopped from denying the same. This, as between these parties, constituted a common source, beyond which the plaintiff was not required to further deraign his title. (Acts of 12th Leg., 2d Sess., p. 3.)
The second error assigned is, that “ the court erred in holding that the deed from appellant, Betsy Webster, to Thomas Baker vested title in said Baker, without his having paid the purchase-money or rendered the services therefor.”
Under this appellants make this proposition, “that the superior title remains in the vendor until the purchase-money be paid.”
The consideration mentioned in the deed from Betsy Webster to Thomas Baker was natural love and affection, recognizing him as her adopted sou, taking care of her since the year 1863, and the sum of $5. The testimony of the witnesses tended to prove that the real consideration of the deed, in part, was that Thomas Baker agreed to take care of and support Betsy Webster during her life-time, and was to have all her property after her death if he took care of her.
The fifth error assigned and the proposition thereunder presented the alleged error of the court in not holding that the deed from Betsy Webster to Thomas Baker was void by reason of fraud in Thomas Baker in its procurement, and mistake on her part as to the lots conveyed.
The fourth error assigned is, that “ the court erred in holding that Mann was an innocent purchaser without notice.”
There was conflicting testimony upon the issue of fraud and
These three assigned errors present the controlling issues in the case, and will be grouped and considered together.
The cases referred to by counsel for appellants in support of the proposition under the second error assigned,—that the superior title remains in the vendor until the purchase-money be paid, — and others of this court on this question, may generally be placed under one of the three following classes:
1. When the conveyance is executory; as, where bond for title has been given, as in Walker v. Emerson, 20 Tex., 706; Baumgarten v. Smith, 37 Tex., 439.
2. When a mortgage for unpaid purchase - money is given simultaneously with the deed, as in The Howards v. Davis, 6 Tex., 174; Dunlap v, Wright, 11 Tex., 597.
3. When an express lien is retained in the deed for the payment of the purchase -money, as in Baker v. Ramey, 27 Tex., 52; Peters v. Clements, 46 Tex., 114.
The case of Mann v. Falcon, 25 Tex., 271, referred to by counsel for appellants, was a contest between the original vendor of the land, who was in possession, and the executor of one of Ms vendees and parties claiming under the other vendee, but who were found not to be innocent purchasers for value without notice.
One of the decisive questions in that case was, whether the conveyance from the vendor, which purported to be an absolute deed, could be shown to have been intended as a mortgage.
It having been thus found, it was decided that, as between the parties to that suit, under the former decisions of this court to the effect that the mortgagor was the real owner of the land and entitled to the possession, the plaintiffs, who stood in the place of the mortgagees, could not maintain trespass to try title.
A suit might, in a proper case and between proper parties, be maintained to subject land which had been conveyed in consideration of future support and maintenance, either in the hands of the original vendee or purchasers under him with notice, to a lien for unrendered services, if the value of the same could be ascertained with reasonable certainty. And it would seem that, under certain circumstances, the aid of a court of equity might be invoked to cancel a deed the consideration of which was future support and maintenance, and which consideration had failed; as was, in effect, the case, also referred to by counsel, of Gibson v. Fifer, 21 Tex., 260.
Such a case, however, is not now presented for our consideration.
The deed from Betsy Webster to Thomas Baker was an executed contract, reciting a consideration already paid and performed. It conveyed the absolute legal title to the land into Thomas Baker.' It had been duly delivered, recorded, and possession taken under it by the vendee, Baker, years before Mann, the plaintiff, purchased. It is here sought to avoid the effect of this deed mainly on the ground of failure of consideration, and this under the plea of not guilty in an action of trespass to try title.
The fact that Betsy Webster also remained on the place with her vendee, Thomas Baker, would not, of itself, constitute an adverse possession equivalent to notice of right remaining in her, as this possession -was consistent with the terms and purposes of her deed. This presents a different case from those
We might, perhaps, in this character of suit, under the pleadings and evidence in the case, rest the right of the plaintiff to maintain his action upon his absolute legal title, the conditions of his lease to Thomas Baker having been broken, without regard to the question of notice. But without deciding this point, it is sufficient to say that the issues whether the deed to Thomas Baker was fraudulently procured, whether any part of the consideration remained unpaid, and whether plaintiff Mann was a purchaser with notice, were submitted on the trial below; and the court, upon conflicting testimony, having decided in favor of the plaintiff, we do not find in the record that there was such error in the judgment as would authorize its reversal.
It is believed that the above virtually disposes of all the material questions in the case, and would require an affirmance of the judgment It is accordingly so ordered.
Affirmed.