Graves v. State , 31 Tex. Crim. 65 ( 1892 )

Appellant was indicted for the offense of swindling; was convicted, and his punishment assessed at two years confinement in the penitentiary, on which judgment was rendered, and he appeals.

The indictment charges the defendant with having obtained from W.C. Reeves money, mules, a wagon and other personal property, aggregating $295, in exchange for a tract of land, which he then and there represented to said Reeves to be free from incumbrance, but in truth and in fact there was an incumbrance on said land, which had been given by defendant to one G.S. Dickerson, defendant's vendor; that the said incumbrance was a written instrument, in words and figures as follows:

"$120. HILLSBORO, TEXAS, March 11, 1890.

"On the 5th day of January, after date, I promise to pay to G.S. Dickerson, or order, one hundred and twenty dollars, with interest at rate of twelve per centum per annum, from maturity of same, being in part payment for a certain tract of land this day deeded to me by G.S. Dickerson and M.J. Dickerson, out of the J.L. Austin survey, and for a more particular description of said land, reference is made to said deed, to secure the payment of which the vendor's lien is retained upon the hereinbefore described property. If this note is not paid at maturity, and is collected by suit, or attorney, I further promise to pay ten per cent additional for attorney's fees.

His "WILLIAM X GRAVES. mark.

"Witness: T.P. TURK and L. EASTERWOOD."

Exceptions to the sufficiency of the indictment were made, and overruled. The only question is, is the indictment sufficient to sustain a conviction? Whether the note set out in the indictment is a lien on the land in the hands of the purchaser, Reeves, necessarily depends on the recitals in the deed from G.S. Dickerson to defendant.

Of itself, though retaining a vendor's lien, the note can not constitute a lien unless the prosecutor had notice of the note and its recitals before he purchased; but this can not be, because the indictment alleges that the injured party purchased the land without notice of the existence of the vendor's lien note, and paid defendant for the land. Unless the deed of defendant from his vendor, G.S. Dickerson, retains a lien or recites the fact that the land is still unpaid for, the purchaser occupies the Gibraltar of defenses, "an innocent purchaser without notice." If, however, the lien is reserved in the deed and the purchaser is bound by the recitals in his claim of title (Willis v. Gay, 48 Tex. 469 [48 Tex. 469]), or if he is bound by the record of the deed, from which the law will presume notice, these facts should have been alleged in the indictment. Merely to state that a note which is set out in the indictment is a lien on the land, is but the inference of the pleader, not sustained but rebutted by the facts pleaded by him. It is not a mere question of evidence. The deed and note are but parts of the same transaction constituting the lien on the land in the hands of the prosecuting witness, W.C. Reeves.

We therefore hold that the indictment is insufficient to sustain the conviction, and the judgment is reversed and the cause dismissed.

Reversed and dismissed.

Judges all present and concurring.