Allen v. Anderson & Anderson

• Decision Date: 21 April 1906
• Citation: 96 S.W. 54
• Parties: ALLEN et al. v. ANDERSON & ANDERSON.
• Court: Texas Court of Appeals

Page 54

96 S.W. 54

ALLEN et al. v. ANDERSON & ANDERSON.

Court of Civil Appeals of Texas.

April 21, 1906.

On Rehearing, June 23, 1906.

Appeal from District Court, Ellis County; J. E. Dillard, Judge.

Action by Anderson & Anderson against Sim Allen and others. There was a judgment for plaintiffs against defendants S. E. Fowler and D. H. Thompson, and in favor of defendant Allen against plaintiffs, and defendants Fowler and Thompson appeal. Reversed and remanded.

Templeton & Harding, for appellants. Anderson & Anderson, for appellees.

BOOKHOUT, J.

This was a suit brought in the district court of Ellis county, Tex., by Anderson & Anderson against Sim Allen, S. E. Fowler, and D. H. Thompson, for an undivided one-half interest in a certain lot in Waxahachie, and for rents. Judgment was rendered for appellees Anderson & Anderson for a half interest in the land, and for $27 rents against S. E. Fowler and D. H. Thompson, and in favor of defendent Sim Allen against plaintiffs. On the 23d of April, 900, George Connor and Katie Connor conveyed to C. A. Harris the lot in dispute. It is known as the Monroe Connor homestead, 84×80 feet on Main street in the town of Waxahachie. Harris borrowed money from Sim Allen and gave him a deed of trust on the lot. Harris having defaulted in the payment of the debt, the deed of trust was foreclosed, and Allen purchased the property. Subsequently Allen employed the law firm of Anderson & Anderson to recover possession of the lot, and, in payment of their services rendered and to be rendered, Allen and said firm entered into the following contract, to wit: "The State of Texas, Ellis County. This agreement between Sim Allen of the first part and Anderson & Anderson of Waxahachie, Texas, of the second part, witnesseth, that for and in consideration of legal services rendered and to be rendered in connection with the suit for the Monroe Connor place in Waxahachie, in suit of Sim Allen v. C. A. Harris by said Anderson & Anderson, said Allen does sell to said Anderson & Anderson one-half of the lot described in said suit and said Anderson & Anderson takes said half in lieu of their fee. Witness our hands this 17th June, 1901. Sim Allen. Anderson & Anderson, per E. P. A. Witness: L. Keplinger, Wm. Keplinger." This contract was never recorded. Judgment was rendered in favor of plaintiff on May 21, 1901, in the case of Sim Allen v. Harris, and a writ of possession was issued by virtue of which Allen was placed in possession of the property. On December 4, 1901, Sim Allen sold and conveyed the entire lot to S. E. Fowler for the consideration of $125. S. E. Fowler on December 9, 1901, conveyed the lot by warranty deed to A. J. Proctor in consideration of $300. March 14, 1902, A. J. Proctor conveyed the lot to D. H. Thompson for the consideration of $300. This deed recites that, "in consideration of the sum of $300 cash," paid by D. H. Thompson to the grantors, A. J. Proctor and wife, they "have granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto the said D. H. Thompson, of the county of Ellis, state of Texas," the property in controversy, fully describing the same "to have and to hold the above-described premises together with all and singular the rights and appurtenances thereto in any wise belonging unto the said D. H. Thompson, his heirs and assigns forever, and we do hereby bind ourselves, our heirs, executors and administrators to deed, quitclaim, assign, sell and transfer all and singular the said premises unto the said D. H. Thompson, his heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof." This suit was filed May 8, 1902.

The appellant Thompson contends that he purchased the land for value and without notice of the contract between Sim Allen and Anderson & Anderson, or any claim by them to the land, and hence is an innocent purchaser. The appellees deny this and say that the deed from Proctor to Thompson, under which Thompson claims title, is a quitclaim deed, and for this reason he is not entitled to be protected as an innocent purchaser. To this Thompson makes reply that the deed to him he is not a quitclaim, but a deed conveying the land itself; that, if this is not so, then his vendor, A. J. Proctor, purchased the land through a warranty deed and paid value for it without notice of the claim of appellees and was an innocent purchaser; and that he (Thompson) is entitled to the benefit of the bona fides of his vendor. Is the deed from Proctor to Thompson a quitclaim deed? If so, then Thompson is not entitled to protection as a good-faith purchaser under that deed; but this fact would furnish no reason why he would not be entitled to claim the benefit of the good faith of his vendor, if in fact Proctor was a good-faith purchaser. The conveyance to Thompson contains the words "deed, quitclaim, assign, sell, and transfer all and singular," etc. Does the use of the word "quitclaim" show that this is a quitclaim deed in the strict sense of that species of conveyance? In the case of Garrett v. Christopher, 74 Tex. 454, 12 S. W. 67, 15 Am. St. Rep. 850, it is said: "Whether the conveyance be a quitclaim or not is dependent upon the intent of the parties to it, as that intent appears from the language of the instrument itself. If the deed purports and is intended to convey only the right, title, and interest in the land, as distinguished from the land itself, it comes within the strict sense of a quitclaim deed, and will not sustain the defense of innocent purchaser. If it appears that it was the...