17 Tex. 143 | Tex. | 1856
It is admitted by the plaintiff, that Watson had authority to procure from the Board of Land Commissioners the issuance of her certificate, and perfect title to the land. If, as she alleges, by the contract he was to obtain the certificate in her name, and was not authorized to procure it to be issued in his own name and right, and the title in part remained in her, he, upon obtaining the certificate in his own name, became her trustee, to the extent of her own interest, clothed with the legal title in trust for her. The case is not materially different in principle from that of one who employs an attorney to purchase lands for him with his money and in his name ; but who, contrary to the instructions of his principal, takes the title in his own name. He holds the title in trust for his principal, who may assert his right and require the conveyance of the title to himself; just as the plaintiff seeks to compel the holder of the legal title to convey to her in this case. As between the parties to the contract, according to the plaintiff’s statement of her case, the relation between Watson and herself was that of trustee and cestui que trust. But as to third persons, who had not notice of their contract, or of her interest, he was the ostensible owner of the certificate in his own right. .Such third persons had a right to regard him as the true owner, and to deal with him, in regard to the property in the certificate, as such. The purchaser from him for value, must be protected, unless he bought with notice of the plain
Wethered was a purchaser for value; and the true and important inquiry in the case is that to which the counsel for the appellee has confined his argument, Was the defendant, Wethered, chargeable with notice of the plaintiff’s equity? This is the question upon which the decision of the case must depend. If he was so chargeable, then he holds the legal estate in trust for the plaintiff ; if not, he holds it discharged of her equities as against his vendor, Watson, whatever they may have been.
The burden of proving notice was with the plaintiff, under the issue made by the pleadings. And we have examined the record in vain to find any evidence whatever to charge the defendant with notice of the plaintiff’s interest in the certificate. The circumstance relied on to affect the defendant with notice is, that he enquired of the witness, Le Grand, “ whether Watson’s right to the certificate was good ?” Le Grand, as he says, being doubtful, from what had previously transpired between Watson and himself, advised the defendant to examine the records of the District Court, and went with him to make the examination ; which being done, the defendant bought the certificate. Le Grand does not say that he communicated his doubts ; but if he did, on examining the records, they found that Watson had instituted suit and established Ms right to the certificate in his own*xname as assignee. What more satisfactory evidence, it may be asked, could he have had, or desired to have, of Watson’s right, than the judgment of a Court having com
A reference to the law of notice applicable to the case, will suffice to place it beyond question, that there is nothing in the evidence in this case to affect the defendant with notice of the plaintiff’s equity. Notice may be either actual or constructive. The former is said to exist where the.party to be affected by it is proved to have had actual knowledge of the fact; where the knowledge of it is brought directly home to him by the evidence. Of this there is no pretence in the present case. Or, there may be constructive notice, as when the party, by any circumstance whatever, is put upon inquiry, which amounts in
Reversed and remanded.