Hollingsworth v. Fowlkes , 6 Tex. Civ. App. 64 ( 1894 )

In appellants' motion for rehearing it is insisted that we should hold that appellee was estopped from claiming the land in controversy by reason of the acts of his vendor, Lackey, in pointing out the land in controversy to appellants as the property of their vendor and codefendant, Nasworthy, from whom they purchased after such pointing out. They also contend, that appellee was not an innocent purchaser, because the strip of land sued for was at the time of purchase from Lackey inside of the enclosure of Nasworthy, and that Lackey was not in possession when appellee bought of him.

Upon these points the facts are as follows:

1. It is admitted that the land in controversy is a part of survey 815. On October 20, 1886, the defendant Nasworthy conveyed surveys numbers 814 and 815 to William Lackey, and pointed out to him a marked pecan tree and string of fence as the northwest corner and west line of said survey 815. In this he was mistaken; the true line was 232 varas west of that string of fence. On March 11, 1888, Nasworthy bought survey number 816, containing 160 acres, from one Leach, which is immediately west of and adjoining survey number 815. At that time neither Lackey nor Nasworthy knew of the mistake in the locality of the dividing line; they supposed the fence was upon the line, and no question had ever been raised about the locality of this line. Nasworthy then agreed with Lackey, that if he would put number 816 in cultivation and under irrigation, they would sell the survey and divide the profits.

On April 9, 1888, appellants Hollingsworth and Rackley applied to Lackey to buy the land, and Lackey pointed out the land to them as Nasworthy's land, saying that the fence was the dividing line between the surveys, and went with them to see Nasworthy at San Angelo, and told him that these men wanted the land, and that he had pointed out the land to them, beginning at the fence. They and Nasworthy agreed upon terms in writing, in which Nasworthy agreed to sell to them "160 acres out of survey number 816," and put all he could in cultivation and under irrigation by January 1, 1889, when he would make the deed, in consideration of which Hollingsworth and Rackley agreed to pay him $20 per acre for all land he put in cultivation and under water, and $3 per acre for the balance, Nasworthy to take as part payment a house and lot in San Angelo at $1000. The record does not show that the notes were ever executed or the amount paid. The amount for which the notes were to be given could not be ascertained until the expiration of the time that Nasworthy had for putting the land in cultivation. The language used by both Nasworthy and Hollingsworth is very similar. Nasworthy says: "They were to give me their notes for balance of the purchase money." Hollingsworth says: "We deeded him the house and lot, and were to give our notes for the balance of the purchase money." This contract or agreement to sell between Nasworthy and Hollingsworth and Rackley was dated April 9, 1888, but was never put upon record, nor does the statement of facts show whether Nasworthy was to give a quitclaim or warranty deed. But two witnesses, Nasworthy and Potter, say that the agreement called for survey 816.

On January 1, 1889, Nasworthy made a special warranty deed to Hollingsworth and Rackley for 160 acres, beginning at the fence and tree, so as to include the land in controversy. About July or August, 1888, Nasworthy and Lackey had survey 816 surveyed, so as to see where to put the fence, and then for the first time found the true dividing line between surveys 816 and 815, showing the land in controversy to be on 815. From that time Lackey claimed the land as his own, and his own tenants cultivated the land in controversy that year. One of them, Corascus, testified that no one except Lackey's tenants cultivated any of the land in suit that year.

We think it is probably true that Nasworthy's tenants cleared up a portion of the land in the fall, when Lackey forbade them doing any more, saying that it belonged to appellee.

On the 16th day of October, 1888, after he had twice been upon the land and had the true dividing line pointed out to him, the appellee, Fowlkes, bought the surveys 814 and 815 from Lackey, taking his warranty deed therefor, and as consideration paid cash $5000 and assumed the payment of a mortgage on the land of $7000, dated in 1887, and due January 1, 1892; at the date of the trial this mortgage has not been paid off, because not due.

When appellee, Fowlkes, went upon the land to look at it and to close the trade for it, he found the old dividing fence, a three-wire fence, down, so he drove over it in several places in his buggy. The true line was pointed out to him. He found Lackey's tenants in actual possession of the strip of land; he saw no one else in possession. Never heard of any other claim to or controversy about the line until February, 1889; nor had ever heard of his vendor, Lackey, pointing out the fence to appellants as the dividing line. Nasworthy was in possession of survey 816, and if it can be said that he was in constructive possession of the strip of land when appellee bought, it is undoubtedly true that Lackey, by his tenants, was in actual pedal possession of the land in controversy.

Appellant Hollingsworth had no right to the possession of survey 816 until January, 1889. Nasworthy's occupancy was his own possession until January, 1889; then, under his unrecorded contract, he was to surrender possession and execute a deed to Hollingsworth and Rackley. Whatever right they had to the land or to survey 816 was a secret, of which the public had no notice, and of which appellee had no intimation whatever.

With these facts before us, we can not hold appellee to be estopped by the acts of his vendor, and we must hold him to be an innocent purchaser for value. If it can be said that Nasworthy, and not Lackey, was in possession of this strip of land when appellee made his purchase, we would still have to affirm the judgment under the facts of this case.

It is true that many cases can be found in which it is held that possession is notice of what title the possessor has, but it is not always true. In all cases where this rule is applicable, the language of the court must be understood with reference to the facts of the cases in which the rule is announced.

The law requires all conveyances of title to land to be evidenced by writing, and to be recorded in the county clerk's office for the protection of innocent purchasers and creditors. In this case the public record of deeds in Tom Green County, where this land is situated, showed a warranty deed on record from Nasworthy to William Lackey, conveying the land in controversy, and no other instrument in the least contradicting or throwing suspicion upon it. And when appellee went upon the ground he found Lackey's tenants in actual possession. If Nasworthy was in constructive possession by reason of his fence, we can not say it was sufficient to override the notice of actual possession.

We think the true rule in such cases as these is laid down by our Supreme Court, for the first time, in the case of Eylar v. Eylar, 60 Tex. 319, 321. In that case, Judge Stayton, after referring to the law requiring the registration of land titles, says:

"Such being the case, can it be said, even if possession is sufficient in all cases to put purchasers upon inquiry, that such inquiry is not prosecuted sufficiently far when the person who desires to buy examines the records of the county and finds on record a deed from the person in possession to the person who offers to sell, and who under that deed asserts title.

"If the inquiry is prosecuted to the highest source which the law of the land declares shall exist for the determination of title, and to the source which the parties have created as the highest evidence of their respective rights, can it be true that it is further necessary to examine sources inferior, and make inquiry as to whether or not there are claims, or even rights, in others not evidenced as the law requires, or otherwise the purchaser be charged with constructive notice of secret vices in the title which he buys?

"To so hold, we are of the opinion, would be to strike at the very foundation of the policy upon which registration laws rest."

In the case from which we quote Judge Stayton, J.F. Eylar and wife conveyed their land to O.A. Eylar, and O.A. Eylar conveyed it to Ann A. Eylar. J.F. Eylar remained in possession, and contended that his deed to O.A. Eylar was intended by them as only a mortgage. Ann A. Eylar had no notice of this secret understanding that the deed should only be a mortgage. The court below charged the jury that J.F. Eylar's possession was sufficient to put a purchaser upon inquiry, and in the opinion rendered by Judge Stayton this charge was held, under the facts of that case, to be error, and the judgment was reversed.

In that case, as appellants contend in this, the grantor remained in possession. That is, it is contended that J.R. Nasworthy, who sold and conveyed surveys numbers 814 and 815 to William Lackey, remained in constructive possession of a part of number 815; while J.F. Eylar, in that case, remained in actual possession of the house and lot deeded by him to O.A. Eylar; the evidence of the possessor's right in each case being a secret and contradictory to their warranty deed on record.

Judge Stayton concludes his argument upon that branch of the case by saying: "We are of the opinion, under the facts in this case, that a purchaser from O.A. Eylar was not bound to inquire of the appellees [J.F. Eylar] what right they had in the land; that the inquiry was sufficiently prosecuted; prosecuted as far as a prudent man, having a due regard to the rights of others, and to his own protection, would be bound to prosecute it, when he looked to the record and there found that O.A. Eylar was declared by the very persons in possession to be the true and absolute owner of the land."

Judge Stayton cites a number of authorities to sustain the doctrine so ably laid down by him in that case.

And so say we in this case. If Nasworthy was really in constructive possession of the land when appellee purchased from Lackey, the record showed that he had, by his warranty deed, conveyed it to Lackey, and as Lackey's tenants were cultivating the land, surely appellee would not be required to inquire of Lackey's vendor whether or not he had any secret or unrevealed rights not disclosed by the record.

The motion for rehearing is overruled.

Chief Justice FISHER did not sit in this case.