Harper v. Over, 1625.

Decision Date05 February 1937
Docket NumberNo. 1625.,1625.
Citation101 S.W.2d 830
PartiesHARPER et ux. v. OVER.
CourtTexas Court of Appeals

Appeal from District Court, Taylor County; M. S. Long, Judge.

Suit by R. L. Over against George W. Harper and wife and others. From a judgment for plaintiff, defendants George W. Harper and wife appeal.

Affirmed.

Kirby, King & Overshiner, of Abilene, for appellants.

Davidson & McMahon, of Abilene, for appellee.

GRISSOM, Justice.

Appellee, R. L. Over, filed this suit against appellants, Geo. W. Harper and wife, and others. Plaintiff's petition consists of three counts: (1) An action in trespass to try title; (2) to remove cloud; and (3) for partition. Harper and wife answered by a plea of not guilty and a general denial. The defendants, other than the Harpers, have not appealed, and it will not be necessary that they be further mentioned. The case was tried before the court without a jury, and judgment was rendered for the plaintiff as prayed for.

H. V. Pannell and wife constitute the common source of title. They were the owners in fee simple of the land in controversy on December 12, 1914, and on that date executed a warranty deed conveying said land to Geo. W. Harper. On November 21, 1923, Harper and wife, by warranty deed, conveyed the land to R. H. Mathews. As a part of the consideration for such conveyance Mathews executed five vendor's lien notes for $1,113.60 each, the first of said notes being due January 1, 1925, and one of said notes being due on the first day of January of each year thereafter to and including January 1, 1929. The deed recited that the grantor, Harper, retained a 1/16 interest in the minerals, etc., in the land conveyed. This recital was the result of a mutual mistake. Grantors and grantee intended that grantors should retain a 1/2 interest in the minerals, instead of a 1/16 interest. Harper assigned the notes to Cunningham, who, on May 1, 1924, assigned the last three of said series of vendor's lien notes (the first two of said series having been paid) to E. C. Thorne. Thorne had constructive notice of the recited reservation of a 1/16 interest in the minerals, etc., in the deed from Harper to Mathews, but Thorne had no notice, either actual or constructive, of any mistake in the recital in said deed, and did not know of the mistake made in said deed; that is, that Harper, in the deed to Mathews, intended to reserve a 1/2 interest in the minerals. It is undisputed that Thorne was an innocent purchaser for value without notice of such intent. On April 21, 1924, Mathews and wife conveyed the land in controversy to W. I. Thorne, trustee for the benefit of E. C. Thorne, beneficiary, to secure the payment of the notes purchased by Thorne from Cunningham, which deed of trust expressly subrogated and carried forward said three vendor's lien notes and lien. Said deed of trust on its face purported to convey the entire land, without excepting any mineral interest therein. On July 9, 1924, E. C. Thorne conveyed said deed of trust indebtedness, amounting to $3,500, to the Lincoln National Life Insurance Company. The fact that Thorne and said Life Insurance Company had no notice, either actual or constructive that Harper, in conveying the land to Mathews, intended to retain any greater interest in the minerals than was recited in said deed, is not disputed.

Thereafter, a correction deed was executed by Harper to Mathews, showing the mistake made in the deed executed in 1923, and showing that it was then intended by said parties that a 1/2 interest instead of a 1/16 interest in the minerals was retained by Harper. On May 7, 1935, the land was sold under the powers contained in the deed of trust, and at such sale the property was purchased by the plaintiff R. L. Over. At the time of such purchase by Over he had both actual and constructive notice of such correction deed, and of Harper's claim to a 1/2 interest in the minerals.

The court's findings of fact include the above statement of the facts of this case.

That a subsequent purchaser, with notice of outstanding equities, who buys from a bona fide purchaser without notice takes title freed of such equities was announced by Judge Pleasants in the following language: "It is * * * well settled that, if a subsequent purchaser with notice acquires title from a former purchaser, who bought for value and without notice, such subsequent purchaser succeeds to all the rights of his grantor. When land once becomes freed from equities by a bona fide purchase by one having no notice of the equities, such purchaser obtains a complete jus disponendi, and any one who takes title from him takes it free from said prior equities, notwithstanding he may have notice thereof at the time he buys." (as found in) Kinard v. Sims (Tex.Civ.App.) 53 S.W. (2d) 803, 806. See Grace v. Wade, 45 Tex. 522; Sanger v. Thomasson (Tex.Civ. App.) 44 S.W. 408, 410; Hawkins v. Western Nat. Bank of Hereford (Tex.Civ. App.) 146 S.W. 1191, 1193; Edmondson v. Williams (Tex.Civ.App.) 295 S.W. 295; Pure Oil Co. v. Swindall (Tex.Com.App.) 58 S.W.(2d) 7; Garrison v. Crowell, 67 Tex. 626, 4 S.W. 69; Hill v. Moore, 62 Tex. 610; 43 Tex.Jur. § 364, p. 618, et seq.; 66 C.J. § 1045, p. 1188 et seq.; Id. § 905, p. 1092; 27 R.C.L. § 449, p. 684; Maupin on Marketable Title (3d Ed.) p. 186 et seq.

Appellants apparently recognize the correctness of the stated rule, but say that the doctrine of caveat emptor applies to all sales under judicial foreclosure, and contend that such rule should be applied to sales under powers contained in a deed of trust, with the result that Over, being a purchaser at such a sale with knowledge of the rights of the appellants to 1/2 of the minerals, acquired only 1/2 of such minerals, instead of 15/16 interest therein, as awarded him by the judgment of the trial court. In an attempt to sustain such contention, appellants cite 35 C.J. 75, 76; 26 Tex. Jur. 545, 546; Oberthier et al. v. Stroud, 33 Tex. 522; 66 C.J. 1332, 1333; 29 Tex. Jur. 957; 19 R.C.L. 622, 623. In reply, appellee says: "* * * the rule of caveat emptor, as applied to a...

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4 cases
  • Moran v. Adler
    • United States
    • Texas Supreme Court
    • July 26, 1978
    ...(Tex.Civ.App. Beaumont 1932, writ ref'd); Hunley v. Bulowski, 256 S.W.2d 932 (Tex.Civ.App. Texarkana 1953, writ ref'd n. r. e.); Harper v. Over, 101 S.W.2d 830 (Tex.Civ.App. Eastland 1937, no writ); Annot., 63 A.L.R. 1362, 1370 (1929); 39 Tex.Jur.2d Mortgages and Trust Deeds §§ 69, 70 (1976......
  • Gainesville Oil & Gas Co., Inc. v. Farm Credit Bank of Texas
    • United States
    • Texas Court of Appeals
    • February 9, 1993
    ...(Tex.Civ.App.--Beaumont 1932, writ ref'd); Hunley v. Bulowski, 256 S.W.2d 932 (Tex.Civ.App.--Texarkana 1953, writ ref'd n.r.e.); Harper v. Over, 101 S.W.2d 830 (Tex.Civ.App.--Eastland 1937, no writ); Annot., 63 A.L.R. 1362, 1370 (1929); 39 Tex.Jur.2d Mortgages and Trust Deeds §§ 69, 70 (Emp......
  • Hunley v. Bulowski, 6656
    • United States
    • Texas Court of Appeals
    • March 5, 1953
    ...from him takes it free from said prior equities, notwithstanding he may have notice thereof at the time he buys. '' Harper v. Over, Tex.Civ.App., 101 S.W.2d 830, 831, and authorities there cited; Donald v. Davis, Tex.Civ.App., 208 S.W.2d 571, w/r. So upon delivery of this deed from Paine to......
  • Gill v. First Nat. Bank of Harlingen, 10242.
    • United States
    • Texas Court of Appeals
    • February 9, 1938
    ... ... Staats ...         In Harper v. Over, Tex.Civ.App., 101 S. W.2d 830, 832, it is said: ...         "We are of the opinion ... ...

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