Glendenning v. Bell , 70 Tex. 632 ( 1888 )

Stayton, Chief Justice.

This action was brought by appellee to recover a part of a lot in the town of Gainesville. V. C. Holland formerly owned the property, but he conveyed it to appellants by a deed delivered on October 20, 1885, which, however, was not filed for record until March 15, 1886. That this conveyance was made in good faith and upon valuable consideration, is not questioned. A judgment was secured aghinst Holland in a justice’s court on February 22, 1886, on which an execution issued March 9, 1886. That was levied on the property in controversy on March 11, and it was sold and bought by the appellee on April 6 following, and the officer executed a deed to him. At the salé notice of the right of appellants was given. At the time the levy was made and at the time of the sale through which the appellee claims, the property was occupied by a tenant holding under the appellants, who had entered after their purchase. The notice given at the sale would not protect the appellants’ rights, but there is no fact shown which would prevent the possession of the tenant of appellants from operating as notice to appellees and to the creditor of Holland of their right at the time the levy was made. The general rule is that the possession of a tenant operates as notice of whatever right the landlord has, as fully as would his own possession. (Mainwaring v. Templeman, 51 Texas, 213; Watkins v. Edwards, 23 Texas, 449; Hawley v. Bullock, 29 Texas, 224; Woodson v. Collins, 56 Texas, 175.)

Opinion delivered May 4, 1888.

The creditor of Holland, under whose execution appellee bought, having notice of the appellants’ rights before his execution was levied, and the appellee having notice before he bought, the latter can not be held to be an innocent purchaser, nor can he be protected as he would be entitled to be if the creditor of Holland had acquired a lien on the property by his levy without notice of the right or claim of appellants.

The judgment should have been for appellants, and it will be reversed and here so rendered. It is so ordered.

Reversed and rendered.