Jenkins v. Adams & Wicks , 71 Tex. 1 ( 1888 )

Walker, Associate Justice.

This is an action of trespass to try title filed November 6, 1885, by appellees, against Jenkins, for two surveys of one hundred and sixty acres each, patented together to J. DeCordova, assignee of Carl Zink.

On the trial plaintiffs read in evidence patent to DeCordova, and a conveyance in form a warranty deed, acknowledging the payment of the purchase money by DeCordova to Victor Considerant, of date January 9, 1856, and duly recorded same day, in Bexar county, of which San Saba then formed a part. San Saba county was organized June, 1856. Plaintiffs then read a quit claim deed from Considerant for a nominal consideration to the plaintiffs of date of August 17, 1885. The court did not err in overruling objection to this deed because it bore date subsequent to the alleged entry charged in the petition. The deed bore date before the filing of the suit.

The defendant then read in evidence an unrecorded document of date January 19, 1856, proving its execution by Considerant, acknowledging that the deed of ninth January was a mortgage. Defendant then read in evidence a deed from one Harris, of date March 33, 1883, to defendant, for one hundred and sixty acres of the Zink land. Harris, in the deed, acted as administrator of the estate of J, DeCordova (who was shown to have died in 1868), and as trustee. The defendant offered in this connection a certificate that Harris was administrator and appointed by the probate court of Bosque county. Copies of the order of sale, sale and a confirmation of sale of one hundred and sixty acres of the Zink surveys to Reed, and of one hundred and sixty acres to C. V. Glenn, and trust deeds to Harris as administrator by Reed, and by Glenn authorizing Harris to sell the lands in default of payment of the purchase money. These were excluded on objection by the plaintiffs. There appears some variance between the description of the lands sold by Harris and the lands described in the petition, and as described in the patent. This variance will not be passed upon. The trial was before the court without a jury and the entire testimony can be considered here.

Jenkins then testified that he paid Harris the purchase money, and that when he bought he had no notice of the title or claim of plaintiffs, and thought he was buying a good title. Defendant also read in evidence a deed of trust signed by J. DeCordova, grantor, Victor Considerant, as beneficiary, and F. Gilbeau, trustee, made December —, 1856, to secure a note by DeCordova to Considerant, recorded in Bexar county, and again recorded in San Saba county, May 27, 1883. This was produced by plaintiffs on notice from the defendant. It was offered by defendant to show the fact of mortgage subsequent to the deed of January 9, 1856, but the court ruled that its introduction should be for all purposes for which it could be used.

The plaintiffs, in rebuttal, then read in evidence a deed by Gilbeau, trustee, to Joseph E. Sweet for the land, recorded in Bexar county, and subsequently in San Saba county, May 8, 1886; also a deed from Sweet to plaintiffs, of date July 18, 1870, and recorded in San Saba county, June 16, 1871. This last recited the trust sale by Gilbeau. These were objected to because they had not been included in the abstract of title filed by plaintiffs, and because not filed three days before the trial with notice of filing. The abstract is not shown in' the record. It was insisted by counsel for the plaintiffs that, by agreement between counsel at a former term of the court, filing had been waived, the deeds having been exhibited to and examined by counsel for defendant. The court, after hearing the statements of counsel, held that filing had been waived, and enforced the parol agreement. This the court had a right to do, and such action is not error. (43 Texas, 120, Williams v. Huling.)

It is evident that, as neither Eeed nor Glenn paid the purchase money to Harris, the condition of the records of deeds at the time of defendant’s purchase, March 33, 1883, he having no actual knowledge of plaintiffs’ title, must determine the rights of the litigants. Our courts have held that registry of a deed is notice only to one claiming under the grantor in the recorded deed. (11 Texas, 93, Watson v. Chalk.)

At defendant’s purchase, the records disclosed the deed by DeCordova to Considerant of January 9, 1856, and that in 1882 the conveyance by DeCordova to Gilbeau for the benefit of Considerant had been placed on record in San Saba county. Of these records defendant was charged with notice. He was a junior purchaser of whatever right in the land was in the deceased DeCordova at his death. He bought subject to whatever defect in his title these conveyances made. These records imposed upon defendant the duty of inquiry, and he is chargeable with whatever he would have discovered upon inquiry. (DeCordova v. Hood, 17 Wall., 8, and cases cited.)

Wé are of opinion that defendant, under these facts, was not an innocent purchaser, and that he was chargeable with the want of title in DeCordova at his death. We find, therefore, no error in the judgment of the court below, and it is affirmed.

Affirmed.

Opinion delivered May 25, 1888