Ball v. Norton

• Decision Date: 22 March 1922
• Docket Number: (No. 296-3580.)
• Citation: 238 S.W. 889
• Parties: BALL v. NORTON.
• Court: Texas Supreme Court

Page 889

238 S.W. 889

BALL v. NORTON.

(No. 296-3580.)

Commission of Appeals of Texas, Section A.

March 22, 1922.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by L. E. Norton against P. D. C. Ball. Judgment for defendant was reversed, and the cause was remanded by the Court of Civil Appeals (225 S. W. 581), and defendant brings error. Judgment of Court of Civil Appeals affirmed.

N. B. Morris, of Houston, and Brooks, Worsham & Rollins, of Dallas, for plaintiff in error.

Seagler & Pickett, of Palestine, and Carothers & Brown, of Houston, for defendant in error.

GALLAGHER, J.

This is an action of trespass to try title brought by L. E. Norton against P. D. C. Ball to recover 867 acres of land out of the Palacious grant in Anderson county. Ball disclaimed as to all the land sued for except such as was included within a certain 792-acre tract described by metes and bounds in his pleadings, and which land he sought to recover by cross-action.

There was a trial by jury. The court instructed a verdict for Norton for all the land sued for except such as was described in Ball's cross-action and, as to such land, instructed a verdict for Ball. Verdict was rendered as instructed and judgment entered thereon. Norton appealed. The Court of Civil Appeals reversed the judgment and remanded the cause. 225 S. W. 581. Ball applied for writ of error and his application was granted by the Supreme Court.

Defendant in error deraigned title to the land sued for by him under William and Sallie Reader, who acquired title by limitation prior to the death of the survivor, Sallie Reader, which occurred January 8, 1908.

On September 12, 1910, Bose Reader, who held this limitation title, executed a deed of trust on the land to secure an indebtedness due to A. D. England. The lien given by this deed of trust was foreclosed in 1912 and the land sold under the foreclosure proceedings and purchased by said England. Some time thereafter, plaintiff in error brought suit in the United States District Court at Tyler in the Eastern District of Texas against Bose Reader and A. D. England and others, to recover various tracts of land, among which was the identical 792-acre tract sued for by him in his cross-action in this case. Judgment in that suit was rendered in favor of plaintiff in error against all the defendants therein for the lands sued for, including said 792 acres, and describing the same as in the cross-action in this case. This judgment was filed for record in Anderson county, October 25, 1916.

Bose Reader, on October 16, 1915, executed to defendant in error a power of attorney and conveyance authorizing him in the name of said Reader to recover from A. D. England and any other claimants, and to perfect the record title to said 867 acres by suit, or otherwise, and in consideration of the services to be performed by him and expenses to be incurred by him, including counsel fees, conveyed to him an undivided one-half interest in said premises. Acting in pursuance of the authority and in accordance with the provisions of this instrument, defendant in error, on April 3, 1916, in consideration of $875 paid by him, procured from England a deed to the land sued for herein. Defendant in error subsequently made an agreement by which he was to retain title to the entire tract of land and pay Reader a cash consideration for the other half, but it is not shown that any such consideration has been paid, or that Bose Reader has executed or delivered to him any conveyance of such equitable interest as he may have in said land growing out of the provisions of such power of attorney and conveyance.

Defendant in error testified that on March 20, 1916, he made an inspection of the land involved in this suit, and that at that date the land was not fenced, and that there was no one in possession thereof. He denied knowledge of any claim by plaintiff in error to such land and the existence of said judgment of the federal court, or of the suit in which it was rendered.

The Court of Civil Appeals held upon the above facts that as to an undivided one-half interest, at least, the evidence raised an issue of innocent purchaser for value, without notice, in favor of defendant in error, and that the trial court erred in instructing the verdict against him and made such holding the basis of its action in reversing the judgment and remanding the cause.

Plaintiff in error seeks to justify the peremptory instruction in his favor on the ground that he was claiming under a judgment of the United States District Court for the Eastern District of Texas, and that defendant in error was charged with notice of such judgment without reference to whether it was recorded in the deed records of Anderson county.

Anderson county is situated in the Tyler division of the Eastern district of Texas. The judgment under consideration was rendered more than a year before plaintiff in error purchased the land. There is no contention that proceedings of any kind were ever instituted to revise said judgment, or that such proceedings were ever contemplated. After such judgment was entered on the minutes, nothing remained to be done to make it immediately effective as a muniment of title in favor of plaintiff in error. Such being the case, the doctrine of lis pendens could not be, at the time of such purchase, invoked to support a claim of notice of such judgment to any one dealing with the land. The fact that such judgment had been theretofore recovered and had been entered on the minutes of said court was not, at that time, constructive notice of either its existence or contents. Russell v. Farquhar, 55 Tex. 355, 361; McLean v. Stith, 50 Tex. Civ. App. 323, 112 S. W. 355, 362, on rehearing (writ refused); 21 Am. & Eng. Ency. Law (2d Ed.) pp. 618, 619; 2 Pom. Eq. Jur. (4th Ed.) §§ 634 to 641, inclusive; Worsley v. Scarborough, 3 Atk. 392.

Our system of registration was unknown to the common law. It is purely statutory. With reference to judgments affecting the title to real estate, it begins where the doctrine of notice by lis pendens ends and provides an easy and effective method of giving constructive notice of the right or title established by such judgment. Russell v. Farquhar, 55 Tex. 259-361;- 27 R. C. L. p. 705, § 470; 2 Pom. Eq. Jur. (4th Ed.) §§ 641, 642; 15 R. C. L. p. 587, § 23; Boynton v. Haggart, 120 Fed. 819, 823, 57 C. C. A. 301.

The statutes of this state provide that every judgment or decree by which the title of any tract of land is recovered shall be duly recorded in the clerk's office of the county in which such tract of land may lie, and that until so recorded such decree shall not be received in evidence in support of any right claimed by virtue thereof. R. S. art. 6835. Our Supreme Court has held that this statute is for the protection of purchasers in good faith. Haines v. West, 101 Tex. 226, 231, 105 S. W. 1118, 130 Am. St. Rep. 839; Russell v. Farquhar, 55 Tex. 355, 360, 361; Thorton v. Murray, 50 Tex. 161, 167.

We are aware of a line of decisions holding that state statutes similar to articles 6837 to 6840 of our Revised Statutes, inclusive, requiring the filing of notice of the pendency of a suit involving title to real estate before the doctrine of lis pendens shall become effective, do not apply to suits in federal courts. However, the Circuit Court of Appeals of the United States for the Fifth Circuit, in the case of United States v. Calcasieu Timber Co., ...