Eylar v. Eylar

• Decision Date: 09 November 1883
• Docket Number: Case No. 1258.
• Citation: 60 Tex. 315
• Court: Texas Supreme Court
• Parties: O. A. & A. A. EYLAR v. J. F. EYLAR AND WIFE.

60 Tex. 315

O. A. & A. A. EYLAR

v.J. F. EYLAR AND WIFE.

Case No. 1258.

Supreme Court of Texas.

Nov. 9, 1883.

APPEAL from Navarro. Tried below before the Hon. L. D. Bradley.

The opinion states the case.

John D. Lee, for appellants, cited: Wood v. Wheeler, 7 Tex., 13;Gunn v. Barry, 15 Wall., 610; Thompson on Homesteads, §§ 10, 11, 291, 293; Peters v. Clements, 46 Tex., 114;Dunlap v. Wright, 11 Tex., 597;Baker v. Ramey, 27 Tex., 52.

On subrogation he cited: Moore v. Raymond, 15 Tex., 554;Murray v. Able, 19 Tex., 213;McAlpin v. Burnett, 19 Tex., 500;White v. Downs, 40 Tex., 225;Flanagan v. Cushman, 48 Tex., 244;Cannon v. McDaniel, 46 Tex., 304;De Bruhl v. Maas, 54 Tex., 469.

On tender he cited: Howard v. North, 5 Tex., 290;Johnson v. Caldwell, 38 Tex., 217;Mann v. Falcon, 25 Tex., 275;Hannay v. Thompson, 14 Tex., 142; Davis et al. v. Brewster et al., Galveston term, 1882 (59 Tex., 93);Bailey v. White, 13 Tex., 114;Herndon v. Rice, 21 Tex., 455;McDonough v. Cross, 40 Tex., 285;Peters v. Clements, 52 Tex., 140;Burns v. Ledbetter, 54 Tex., 382.

On parol trusts he cited: Mead v. Randolph, 8 Tex., 191;Vandever v. Freeman, 20 Tex., 333;Massey v. Massey, 20 Tex., 134;Miller v. Thatcher, 9 Tex., 482;Cuney v. Dupree, 21 Tex., 211.

On constructive notice he cited: Alstin v. Cundiff, 52 Tex., 465;Ranney v. Miller, 51 Tex., 263;Cameron v. Romele, 53 Tex., 238;Billington v. Welsh, 5 Binney (Pa.), 129; Kerr on Fraud and Mistake, 80, 81, 257; Camp v. Camp, 2 Ala., 632; Parham v. Randolph, 4 How. (Miss.), 435; Meehan v. Williams, 48 Pa. St., 240; Wickes v. Lake, 25 Wis., 96;Tuttle v. Jackson, 6 Wend., 226;Smith v. Yule, 31 Cal., 184; Bigelow on Estoppel, 604; Wade on Notice, secs. 280, 288, 290, 291, 292, 297, 300.Beale & Jones, for appellee, cited on mortgages: Mead v. Randolph, 8 Tex., 199;Mann v. Falcon, 25 Tex., 275;Luckett v. Townsend, 3 Tex., 119;Stephens v. Sherrod, 6 Tex., 294;Horne v. Puckett, 22 Tex., 205;Moreland v. Barnhart, 44 Tex., 283;Hudson v. Wilkinson, 45 Tex., 444;De Bruhl v. Maas, 54 Tex., 472; Jones on Mortgages, sec. 316.

On purchaser without notice, they cited: Watkins v. Edwards, 23 Tex., 447;Beaty v. Whitaker, 23 Tex., 528;Jewett v. Palmer, 7 Johns. Ch., 65;High v. Batte, 10 Yerg., 335;Rawles v. Perkey, 50 Tex., 315.

STAYTON, ASSOCIATE JUSTICE.

There are many assignments of error in this case, but only such of them will be considered as are deemed well taken, and necessary to be considered for the proper determination of this appeal.

It appears that on May 1, 1876, J. F. Eylar and wife conveyed the property in controversy to O. A. Eylar, by deed absolute in form, containing clause of general warranty and reciting a consideration of $500 paid. This deed was acknowledged by the husband and wife in such manner as would pass title to homestead property, and was filed for record on the day of its execution. At the time of this conveyance the property was used by J. F. Eylar as a saddler shop, and after the purchase he continued to use it for the same purpose.

On the 26th of October, 1876, O. A. Eylar conveyed the property to Ann A. Eylar, his mother, in consideration of $500, the greater part of which seems to have been paid by the other children of Ann A. Eylar, prior to the institution of this suit. Mrs. Ann Eylar executed five notes to secure the payment of the purchase money; whether they were negotiable, or had been negotiated, does not appear.

It is claimed by the appellees that it was agreed between them and O. A. Eylar that the deed executed by them to him should only operate as a mortgage to secure to him the repayment of money which he agreed to pay to Padgitt, who held an express lien upon the lot for the purchase money, and further to secure to him the repayment of such sum as he had agreed to pay to one Shelton on a debt due to him by J. F. Eylar, to secure which Shelton held a deed of trust on the property in controversy which was executed March 1, 1875.

The indebtedness of J. F. Eylar to Padgitt and to Shelton was paid by O. A. Eylar, and together amounted to more than $500.

It is claimed by the appellants that the conveyance to O. A. Eylar was an absolute sale, and not understood by the parties thereto as in any sense a mortgage, and that after the date of the deed to him the appellees recognized him as their landlord and paid to him rent for the property until he conveyed to Ann A., and that after that time they so recognized Ann A. and paid rent to her, and there was much evidence tending to show that this was true.

That money designated as rent was paid by J. F. Eylar he does not deny, but claims that the sums which he paid, while denominated rent, were agreed and understood to be only paid as interest on the sum paid to Padgitt and Shelton.

Mrs. Ann A. Eylar further claims, if the conveyance from J. F. Eylar and wife to O. A. Eylar was, as between them, only intended as a mortgage, that she had no notice of that fact, and is entitled to protection as an innocent purchaser.

There is no evidence that Ann A. Eylar had any actual notice that the deed to O. A. Eylar was intended by the parties to it simply as a mortgage, and it is contended by the appellees that their possession of the property after they had made the deed to O. A. Eylar and the same had been placed upon record was notice to her of any understanding which may have existed between them and O. A. Eylar.

Upon this subject the court gave the following instructions: “Notice is of two kinds, actual and constructive; actual notice is the actual personal knowledge by a person of an existing state of facts; constructive notice is an apparently existing state or condition of things, such as would put a person upon inquiry to ascertain the actual state of facts. The actual possession of property by any one, whether he has title to same or not, and the relationship of the parties is such constructive notice as to put a purchaser upon inquiry, but such possession must be clear, open, notorious and unequivocal. Such inquiry is only required to be reasonable and diligent, such as the examination of the proper records, and inquiry by those who, by their connection with the matter, are most likely fully to be informed about it.”

The giving of this charge is assigned as error. This charge in effect assumes that the possession of a vendor, after having executed an absolute deed which has been placed upon record, is constructive notice of whatever right the vendor may have secretly retained, by verbal agreement or otherwise, with his vendee.

This precise question, so far as we know, has not been passed upon by this court.

In the case of Mullins, Guardian, v. Wimberly, 50 Tex., 446, the question seems to have been considered, and the opinion seems to limit the application of the rule that possession is notice of whatever title the possessor has, to cases in which the possessor is not knowingly in fault in permitting a deed which he has executed to be placed on record, or to cases in which the possessor has not voluntarily aided in misleading a purchaser. The facts of that case were peculiar, and one of the grounds upon which the title of the possessor was sustained, although a deed of the ancestor of the guardian's wards was shown to have been executed and recorded before the right of the claimant attached, was that the instrument through which the claimant asserted title was executed in mutual mistake as to the land which both parties intended should be covered by it. Many cases can be found in our reports in which it is said that possession is notice of whatever title the possessor has. Among them are the following: Watkins v. Edwards, 23 Tex., 443;Hawley v. Bullock, 29 Tex., 223;Mainwarring v. Templeman, 51 Tex., 212;Wimberly v. Bailey, 58 Tex., 227. All of these were cases in which the rule was applicable, and the language must be understood with reference to the facts of the cases.

It would seem that the sole office which possession performs, in the matter of notice, is to put a person desiring to purchase upon inquiry, and that it has no effect in determining what the inquiry shall be, or of whom it shall be made.

The policy of the law, as evidenced by our statutes, requires all conveyances of land or interests therein for a term longer than one year to be evidenced by writing, and when parties place, in this the most certain and enduring form, the evidence of their right, they ought to be held, so far as third persons are concerned, to have therein spoken truly in respect to the title to the land to which the conveyance relates.

That all persons who may deal with persons claiming land may have the means of knowing in whom titles to land rest, and that no one may buy what appears to be a good title, when another person may have better right not made public, the law requires all persons, for the protection of innocent purchasers and creditors, to register their titles to land.

Such being the case, can it be said, even if possession is sufficient in all cases to put purchasers upon inquiry, that such inquiry is not prosecuted sufficiently far, when the person who desires to buy examines the records of the county and finds on record a deed from the person in possession to the person who offers to sell, and who under that deed asserts title.

If the inqury is prosecuted to the highest source which the law of the land declares shall exist for the determination of title, and to the source...