Johns v. Wear , 1921 Tex. App. LEXIS 294 ( 1921 )

The plaintiff in the suit, having shown a complete chain of title from the common source to herself, is entitled to recover the land unless the defendant was, as he claims, an innocent purchaser for value. Each party claims under J. H. Smelser as the common source of title. On September 4, 1886, J. H. Smelser, it appears, executed a deed to G. B. Ellis to the land in suit, and this deed was recorded September 30, 1886. This is plaintiff's line of title. But it appears that on September 24, 1886, before the registration of the deed to G. B. Ellis, a deed was made by J. H. Smelser to Georgia E. Runnels conveying 1,400 acres of land, which embraces the land in suit. This latter deed recited the consideration to be "2,000 acres of land situated in Val Verde county, Texas, this day conveyed to me by Georgia E. Runnels, which land is valued at $3,000.00, and the further consideration of $5.00 cash in hand paid." This is the defendant's line of title. As the first deed to G. B. Ellis was not recorded on the date of the second deed to Georgia E. Runnels, the subsequent vendee, Georgia E. Runnels, would be entitled, in virtue of the registration statute, to have the prior unregistered deed postponed to her subsequent conveyance, if it appears that she was a bona fide purchaser without notice of the title of the prior vendee and that the purchase money has been paid. A recital in the deed of the payment of the purchase money is not evidence against the prior purchaser, and the burden of proof is on the junior purchaser. Turner v. Cochran, 94 Tex. 484,61 S.W. 923. And it would follow that if Georgia E. Runnels was a purchaser for value and without notice, the defendant in this case would succeed to all the rights of Georgia E. Runnels through his subsequent purchase from her devisee under will. Grace v. Wade, 45 Tex. 522. The defendant proved by a witness that Georgia E. Runnels did pay value for the land in the deed of September 24. But in view of the evidence the jury, in their province, had the right to disregard the evidence of the witness, and there were also circumstances that the jury could consider and from which they could conclude, as they did, that Georgia E. Runnels did not in fact pay value. She was a minor of 17 years of age at the date of the deed, and subsequently a deed of gift to her of the same land was made, and it does not appear that she ever asserted any claim to the land; it was not inventoried as a part of her estate. If the jury could, as in their province, disregard the evidence of the witness, then there is no evidence left to show a payment of value and purchase without notice. Georgia E. Runnels is therefore not shown to be an innocent purchaser without notice, and the defendant could not recover on that fact.

The jury made the finding that Ludwig C. L. Treame was a myth and that there was no such real person. The evidence, though disputed by the defendant, supports the finding. But appellant insists that appellee was not entitled to recover against the appellant by showing that Treame was a fictitious grantee. The conveyance by J. H. Smelser and Georgia E. Smelser (née Georgia E. Runnels) to Ludwig C. L. Treame on October 3, 1895, was inoperative, as there was no such person to take title, the grantee being a fictitious person. The title to the property then remained where it was — in Georgia E. Smelser as her separate property, being acquired, if she did so, as a feme sole. David v. Fire Ins. Co., 38 Am.Rep. 418. Treating the power of attorney by "Treame" to Smelser as being in effect a power of attorney by Georgia E. Smelser to J. H. Smelser, her husband, it was legally then inoperative because Georgia E. Smelser, a married woman, was incapacitated to make a power of attorney direct to her husband to convey her separate property. Georgia E. Smelser was divorced and married to another when J. H. Smelser as agent conveyed to defendant. The title then, if Georgia E. Runnels had any, is not shown to be in defendant before suit, and be cannot, in the circumstances, be legally considered an innocent purchaser.

The judgment is affirmed.