Watkins v. Sproull , 8 Tex. Civ. App. 427 ( 1894 )

Appellants are husband and wife, and brought an action of trespass to try title against appellees for a lot in the town of Eagle Pass. The case was tried without a jury, and judgment rendered for appellees. The facts are as follows: The land in controversy was in 1883 given by her half-brother to Mrs. Watkins, and in the same year appellants, by giving a valid builder's lien on the lot, obtained material amounting to $3000 from the Eagle Pass Building and Loan Association, and put the same into improvements on the lot, which, when completed, were moved into, and became their homestead. In 1887, the shares in the association having nearly become mature, appellants, desiring to retain the same, executed a warranty deed properly acknowledged to the association, conveying to it the lot and improvements for the debt, the agreement being that the property should be reconveyed at some future time. In May, 1888, over fifteen months after the execution of the warranty deed by appellants, the building and loan association reconveyed the property to appellant E.L. Watkins for $3000, which was evidenced by promissory notes, and a vendor's lien was reserved in the deed to secure payment of the notes. The notes were sold to Sproull, who died, leaving as his executrix and sole legatee his wife, Harriet F. Sproull. Mrs. Sproull foreclosed the vendor's lien on the property, and the same was sold by order of court, and was bought in by Mrs. Sproull, who afterwards sold the same to F.A. Vaughn. Vaughn employed an attorney and had the records thoroughly examined before he bought, and had no notice, actual or constructive, of any claim whatever against the property. The deeds were all recorded promptly.

There is no question raised as to the mechanic's lien which was given in 1883 not having been a valid one, drawn and acknowledged by statute; and after this lien had been acquired and was in full effect, any contract made in adjustment of the equities existing between the parties, even though it involved the execution of a lien on the home stead, would be permissible, and would be enforced. Or in other words, the mechanic's or builder's lien having been once legally created, any subsequent conveyances made or liens given with the purpose and design of meeting the demands of the original lien, would be legal and permissible. Lippencott v. York, 86 Tex. 276. The legality or illegality of the transaction would go back to the original contract upon which it is based, and one of the appellants swears that the building and loan association had a mechanic's lien on the house and lot in controversy, and that the warranty deed given by appellants in 1887 to the association was for the purpose of securing in another manner the money due and payable on the homestead by virtue of the mechanic's or builder's lien. This question has been exhaustively discussed by the learned jurist, the lamented Chief Justice Stayton, in the Lippencott-York case above cited, and it becomes unnecessary to further elaborate the idea. We are then of the opinion that the warranty deed, which by the testimony is shown to have been a mortgage given by appellants to secure the payment of money due for material furnished to build the improvements on the lot in controversy, was a valid and legal instrument, and created a lien upon the homestead, and being legal, the transaction conveying the property back to appellant E.L. Watkins, and reserving a vendor's lien, was also valid, and this last lien was foreclosed and the property sold and bought in by the executrix of the Sproull estate.

But admitting the invalidity of the transaction between the parties down to Vaughn, yet under the facts of this case, we are of the opinion that appellee Vaughn was an innocent purchaser for value without notice, and his title should be sustained on that ground. Vaughn testifies, that he consulted an attorney as to the title, and was advised that it was a valid title. The attorney carefully investigated the records, and upon the records was based the opinion given by him to his client. F.A. Vaughn, one of the appellees, swears, that he had no actual notice whatever of the facts and circumstances surrounding the transactions between appellants and the building and loan association. Whether the builder's lien was recorded or not is not shown by the transcript, but if it was recorded, taken with the warranty deed given to the association in 1887, it would evidence nothing but a payment of debt by this means, and if it was not recorded, then there was nothing of record but a notice of a sale to the association and a subsequent repurchase by appellants, the vendor's lien being reserved in the last transaction to secure the purchase money. There was a lapse of time of over a year between the deeds from and to appellants.

It is true that appellants were in possession of the premises when the purchase was made, but this, "in the matter of notice, is to put a person desiring to purchase upon inquiry, and it has no effect in determining what the inquiry shall be, or of whom it shall be made." Eylar v. Eylar, 60 Tex. 315. Our laws require conveyances to land to be put upon record, and when parties have solemnly placed their contracts in regard to land in writing, and have had the same recorded, right, justice, and good conscience would demand, so far as third persons are concerned, that they be held to and bound by the things so written and recorded. Vaughn swore that he had never heard of any one claiming the land, and it does not seem that there was any one at the time of the purchase claiming the land, for when he spoke to Mrs. Watkins about his purchase, either intended or consummated, she asserted no claim to the property, but said she would move out as soon as she could get another house. The possession of the property by appellants should have put appellee Vaughn upon inquiry; but what more could have been required of him than to employ an attorney and have the record title thoroughly investigated, and there was nothing in the record to excite further inquiry; but on the other hand, when he reached the records he was lulled into security by a warranty deed from the persons in possession, a reconveyance to them, a vendor's lien reserved, a foreclosure of this lien, a valid order of sale, and a sheriff's deed. There was no necessity to go further; and to so hold, says our Supreme Court in the Eylar case, "would be to strike at the very foundation of the policy upon which registration laws rest." This doctrine is fully sustained in a number of cases. Hurt v. Cooper, 63 Tex. 366; Coker v. Roberts, 71 Tex. 597; Hoffman v. Blume,64 Tex. 336; Heidenheimer v. Stewart, 65 Tex. 323 [65 Tex. 323]; Love v. Breedlove, 75 Tex. 652.

Appellants claim that the sale made by the executrix to Vaughn was void, because it was not shown that the sale was made by the executrix by order of the court in which the estate was being administered, or that the sale was ever reported to or confirmed by the court. No objection was made to the admission of the deed on this ground in the lower court, and had it been made, it would not have availed, as the deed of the executrix and the findings of the judge show that Mrs. Sproull was not only the executrix but sole legatee under the will of her husband, and she had full authority to sell the land. None of the assignments of error are well taken, and while we may differ with some of the conclusions both of law and fact found by the trial judge, yet the final conclusion is correct, and the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.