Wynne v. Ward , 41 Tex. Civ. App. 232 ( 1905 )

This is an action of trespass to try title brought by M. P. Wynne in the usual form to recover of appellees three hundred and twenty acres of land out of the P. J. Chiles survey in Jefferson and Hardin Counties. From a judgment in favor of defendants Wynne has appealed.

The case is here upon agreed facts and one law question. The nature of the case and the question are thus stated by appellants counsel in the brief, which statement we adopt.

"Appellant showed title to the land by deed dated September 13, 1886, from Richard H. Barrow recorded on the 24th of July, 1901. The appellees claim under an instrument from the same grantor dated the 26th of September, 1898, to Jean S. Ward, one of the defendants. At the time of the conveyance to Jean S. Ward of the same land by the same grantor, appellant's prior deed was not of record, and the defendants claimed to be innocent purchasers without notice of appellant's senior deed.

The question at issue was whether or not the instrument from Barrow to Ward is a quit claim deed, or such an instrument as would conclude defendants from interposing the defense of innocent purchaser for value without notice of appellant's prior unrecorded deed."

This must be supplemented by the further statement that it was shown that Mrs. Ward paid the consideration named in the deed of 1898 without actual notice of the plaintiff's unrecorded deed, and that the consideration was fair and adequate.

The deed under which Mrs. Ward and her coappellees claim is as follows:

"Know All Men By These Presents: That I, Richard H. Barrow, of Brazoria County, Texas, for and in consideration of the sum of fourteen hundred and forty ($1,440) dollars, to be paid and secured to be paid by Mrs. Jean S. Ward, of her separate estate and property, as follows, to wit: Four hundred and eighty ($480) dollars cash in hand, the receipt of which is hereby acknowledged; four hundred and eighty ($480) dollars secured by a certain promissory note of even date herewith, due and payable one year after date, and four hundred and eighty ($480) dollars, secured by a promissory note of even date herewith, due and payable two years after date, both of said notes signed by Mrs. Jean S. Ward, have bargained, sold and conveyed, and by these presents do bargain, sell and convey unto the said Mrs. Jean S. Ward, and unto her separate use and behest, and unto her heirs and assigns, all my right, title and interest in and to all that certain tract or parcel of nine hundred and sixty (960) acres off of the north end of that certain survey of twelve hundred and eighty (1,280) acres of land, in Jefferson and Hardin Counties, Texas, patented to Mrs. P. J. Chiles, to the patent of which, as of record in Book 'Y,' pages 262-3, Jefferson County records, reference is hereby made for a perfect description thereof. To have and to hold all and singular the said tract of land, unto Mrs. Jean S. Ward, and unto her heirs and assigns, forever. And I do hereby bind myself, my heirs and legal representatives, to forever warrant and defend the title to the same unto the said Mrs. Jean S. Ward, and unto her heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. But it is distinctly understood that the vendor's lien is reserved upon the said property till both of said notes shall have been well and truly paid according to their face, and with all interest thereon, when this deed shall become absolute. In testimony of all which I hereto set my hand this 26th day of September, 1898.

(Signed) Richard H. Barrow."

The only ground urged in the brief for reversal of the judgment is that the deed is a quit claim, and for that reason will not support the plea of innocent purchaser for value.

Counsel in support of this contention has filed an able brief, and ably presented his position in oral argument, entering in each instance into an exhaustive review of the authorities.

We shall not undertake to follow counsel nor to discuss the question at any length. Insofar as it applies to the deed in question and its attendant facts, the question is not an open one in this State. Whatever doubt may have existed upon the point, it is now the settled law in Texas that if an inspection of the whole instrument discloses that the vendee purchased and the vendor sold the land, as distinguished from a mere claim or chance of title, the instrument will support the plea of innocent purchaser. Moore v. Swift, 67 S.W. Rep., 1065; Garrett v. Christopher, 74 Tex. 453.

It is also true that in cases of doubtful construction, the payment of adequate consideration and the retention of a vendor's lien for the purchase money, may be taken into consideration. Richardson v. Levi, 67 Tex. 359; Harrison v. Boring, 44 Tex. 256; Taylor v. Harrison,47 Tex. 460; Abernathy v. Stone, 81 Tex. 430 [81 Tex. 430]; Kempner v. Beaumont Lumber Co., 49 S.W. Rep., 412; Threadgill v. Bickerstaff, 87 Tex. 523 [87 Tex. 523]; Hunter v. Eastham, 95 Tex. 648.

The right in any case to postpone a senior to a junior deed rests in part upon the absence of notice or of knowledge of some fact or circumstance which ought to have provoked effective inquiry.

Whether there was such notice or knowledge is always a fact inquiry. If in the deed, under which the claimant asserts the right, are found recitals which ought to have put him upon inquiry, the investigation need proceed no further. His claim of innocence fails. But if the deed contains no such recital, the inquiry need not stop, for it may still appear that notice came from other sources. Indeed, under a conveyance absolute in form, the claimant must, as against the legal title, make his innocence affirmatively appear.

It is therefore clear that in holding a quit claim deed to be notice, only the effect of it as evidence is declared. If then there are other features of the instrument which, either standing alone or construed in the light of attendant circumstances, rebut the idea that either the vendor or vendee had any doubt as to the title, there is no reason why the vendee should not be held innocent.

We think the judgment should be affirmed and it is so ordered.

Affirmed.

Writ of error refused.