Central City Trust Co. v. Waco Building Ass'n , 95 Tex. 48 ( 1901 )

This was an action of trespass to try title by defendant in error against plaintiff in error, in which the petition was in the ordinary form and the answer a plea of not guilty. Both parties claimed under J.I. Moore.

Plaintiff below recovered judgment for money against Moore on May 14, 1897, of which an abstract was duly filed and recorded May 15, 1897, and thereafter the property was sold under such judgment and purchased by plaintiff. On the 27th day of February, 1897, Moore conveyed the property to Julia Johnson, who, for the purchase money, executed her note payable to the Central City Trust Company in installments amounting to $690. The deed executed by Moore to Johnson retained a lien to secure the note, but it does not appear from the findings of fact made by the district judge (there being no statement of facts), that the note expressed any lien or that it was such an instrument as should have been recorded. The deed was not filed for record until January 2, 1900.

Julia Johnson conveyed the property to M.B. Beerman on the 19th of June, 1899, Beerman for the purchase money paying $50 cash, and executing fifteen notes for $25 each, payable to the Central City Trust Company. A lien to secure these notes was likewise retained in this deed, which was also recorded January 2, 1900. The notes given by Beerman were taken by the Central City Trust Company in lieu of that of Julia Johnson, executed in the sale from Moore to her. Beerman afterwards conveyed the property to the Central City Trust Company for $50 cash and in satisfaction of his notes. When plaintiff's abstract was recorded, no one was in possession of the property and plaintiff had no notice of the conveyance from Moore to Johnson.

Under the rule in Grace v. Wade, 45 Tex. 522, and many other cases following it, plaintiff's lien, arising from the record of its abstract, was superior to the unrecorded deed from Moore to Johnson, and, by its purchase at execution sale, plaintiff acquired title to the property as against those claiming title under that deed. The pleadings presented only the question of title and right of possession. If defendant, by virtue of the note originally given by Julia Johnson for purchase money, held a vendor's lien on the land which is still enforcible, it could not be foreclosed under the plea of not guilty. Hence, in refusing the application, we do not pass upon this question. The judgment is correct and the writ of error is refused.

Writ of error refused.