Grace v. Mains
| Decision Date | 01 January 1876 |
| Citation | 45 Tex. 522 |
| Parties | CHARLES D. GRACE v. WADE & MAINS. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Montague. Tried below before the Hon. A. E. Wilkinson, special judge.
Thomas L. Wade and Lucy A. Mains, surviving widow of L. F. Mains, sued Charles D. Grace, J. J. Jones, Martha Anderson, and her husband, Aaron Anderson, A. J. Hailey, and Houston Hailey, claiming 640 acres, interest in a survey of a tract of 1,252 acres described in the petition; alleging that on February 20, 1869, the defendant, J. J. Jones, for valuable consideration, executed his title bond, whereby he contracted with plaintiffs, Wade and S. F. Mains, to execute to them a valid deed by July 1, 1869, for said 640 acres; that Wade and Mains had paid the purchase-money, $640, and S. F. Mains was dead; that the plaintiff, Lucy A., had filed her bond and inventory under the statute, and that Jones refused to make title to plaintiffs for said land. The petition admitted an interest in the other defendants in the 1,252-acres tract, and as to them asked partition.
C. D. Grace pleaded that on May 1, 1871, Sarah E. and William L. Gilcres obtained judgment in the District Court of Fannin County against J. J. Jones et al. for $240.83, under which judgment, an alias execution was issued October 5, 1871, to the sheriff of Montague county; that December 23, 1871, the sheriff of said county, under said execution, levied on two tracts of said 1,252-acres tract, one of 371 and the other of 147 acres, (describing the tracts;) that the execution was returned for want of time to sell; that thereafter, on February 7, 1872, a venditioni exponas was issued, commanding said sheriff to sell said land so levied on in satisfaction of said judgment; that sale was made under said order on the first Tuesday in March, 1872, when defendant, for the sum of thirty dollars, became the purchaser; that the sheriff executed a deed to defendant for the lands so purchased, and “that at the time of the issuance of and levy of said execution as aforesaid, the plaintiffs therein had received no notice, actual or constructive, of the title bond” set forth in the petition from Jones to Wade and Mains, and under which they claim; that it had never been registered or filed for record in the proper county, and that plaintiffs in said execution had no notice of any claim of Wade and Mains to said land.
To the answer of Grace plaintiffs excepted, because it was not alleged therein that he (defendant) had no notice of plaintiff's title at or before his purchase at the execution sale.
The exceptions were sustained and the answer excluded.
Judgment was rendered for plaintiffs as prayed for, and Grace appealed, alleging as error the action of the court in sustaining plaintiff's exceptions to his answer.
W. O. Davis, and Walton, Green & Hill, for appellant.
Potter & Dixon, for appellees.
The only question in this case is, whether a vendee of land, who claims title by an unrecorded deed, or bond for title, or the purchaser, with notice of such deed or bond, at execution sale on a judgment against the vendor, where the creditor has no notice of the title or claim of the vendee at the date of the levy of the execution, has the better title. The determination of this question depends upon the nature and character of the lien acquired by a creditor by the judgment and levy of execution, and if it is admitted that the lien of the creditor is superior to the unrecorded deed of the vendee, whether a purchaser under the execution with notice, is entitled to all the rights of the creditor.
Both of these propositions, as we think, are plainly and conclusively answered by our statutes. There appears to be, however, some uncertainty on the subject in the mind of the profession, as well as some confusion in regard to it in the later decisions of the court. This seems to us to arise from a failure to apprehend the full import and purpose of the statutes, and from not observing the facts upon which the earlier decisions of the court turned and the distinctions adverted to by the court in determining those cases.
It is well settled that the lien acquired by a judgment or levy of an execution by the common law, extends to and binds only such title or interest as the debtor has in the land at the date of the judgment or levy of the execution under which the lien is claimed, and that the equitable rights of third persons will be upheld against the legal lien of the debtor. (Blankenship v. Douglas, 26 Tex., 228.)
But the rights of the lien creditor, and of third parties claiming by unrecorded conveyances, are not to be determined with us by the common law, but by the statute changing and modifying, and to some extent, at least, entirely abrogating the common-law rule in such case.
Article 4988, Paschal's Dig., says: “All bargains, sales, and conveyances whatsoever, of any lands, tenements, and hereditaments, whether they may be made for passing any estate of freehold or inheritance, or for a term of years; * * * and all deeds of trust and mortgages whatsoever, which shall hereafter be made and executed, shall be void as to all creditors, and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved, and lodged with the clerk to be recorded according to the directions of this act, but the same, as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof, or without consideration, shall nevertheless be valid and binding.”
And the next succeeding article expressly shows that title bonds, if, indeed, there could have been otherwise any doubt about it, are written contracts in relation to land, to which the provisions of the article we have quoted, apply.
The statute, in plain and unmistakable language, says that unrecorded conveyances, whether by deed or bond, are void as to two classes of persons, viz, “all creditors” and “subsequent purchasers for valuable consideration without notice.” Now, it will be noted that there is a marked distinction between these two classes of persons for whose benefit the statute was enacted; for while such unrecorded instruments are void as to “all creditors,” they are only so as to “purchasers for a valuable consideration and without notice.” And lest there might be any uncertainty in its proper construction, and to guard against all danger of confounding the two classes, as to whom such instrument was declared void, without making any qualification or restriction as to creditors, it enacts, that as to the parties to such instruments, and their heirs, and all subsequent purchasers with notice, and without valuable consideration, they shall be valid. And as still further showing that the same rule was not intended to apply to the “creditors,” as to whom the unrecorded instrument is declared void, as is applicable to “subsequent purchasers,” the statute again says: “Every conveyance, covenant, agreement, deed, deed of trust, or mortgage, in this act mentioned, which shall be acknowledged, proved, or certified, according to law, and delivered to the clerk of the proper court to be recorded, shall take effect and be valid as to all subsequent purchasers for a valuable consideration, without notice, and as to all creditors from the time when such instrument shall be so acknowledged, proved, or certified and delivered to such clerk, to be recorded, and from that time only. (Paschal's Dig., art. 4994.)
Now, if the unrecorded instrument cannot take effect, but is void as to creditors, it is absurd to say that the creditor's lien does not bind the land to which it applies, or that it cannot be enforced by the sale of the land so bound by it for the payment of the debt, just as if no such instrument existed. And it would be equally as absurd to say that the right acquired by the creditor by his lien, not merely to purchase himself, but to have the land sold in open market, when once secured, can be taken away by the subsequent record of such instrument, or that the party holding such lien can, by subsequent notice, be precluded from the...
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