Hawley v. Bullock

• Decision Date: 31 January 1867
• Parties: GEORGE HAWLEY, ADMINISTRATOR, v. JAMES D. BULLOCK.
• Court: Texas Supreme Court

29 Tex. 216

GEORGE HAWLEY, ADMINISTRATOR,

v.JAMES D. BULLOCK.

Supreme Court of Texas.

January, 1867.

It is well settled that deeds and instruments respecting the titles to lands executed before the passage of our registration laws should be recorded in the counties in which the lands are situated. Pas. Dig. arts. 4973, 4980-4982, notes 1084 to 1092; 7 Tex. 348;11 Tex. 89;15 Tex. 413;27 Tex. 359.

If conveyances be not registered, they have no effect as to the interests and rights of third parties. Pas. Dig. arts. 4978, 4983, 4994, notes 1089, 1092.

The older conveyance is valid, and passes the title without registration, except as to subsequent purchasers for a valuable consideration paid without notice; and as to creditors, it has no effect. Pas. Dig. arts. 4978, 4983, 4994, notes 1089, 1092.

A subsequent purchaser must be one who has bought for a valuable consideration paid, and without notice of the former conveyance or sale.

Actual notice is when the party has knowledge of the fact. Constructive notice is brought home to the party by the registration of the title papers, or when he is put upon inquiry by any circumstances, which, by the exercise of ordinary diligence and judgment, would lead to a knowledge of the fact: such circumstances as make it the duty of the party to make inquiries. Pas. Dig. art. 4983, note 1092; 17 Tex. 149;25 Tex. 54.

Possession of the premises by the owner in person, or by agent or tenant, are sufficient circumstances to put any prudent man upon inquiry, as to the title under which he holds the premises, and it amounts to notice of the title under which the occupant holds and claims the land. 23 Tex. 443;24 Tex. 619;26 Tex. 747.

A party who claims to be a purchaser in good faith, should prove the payment of the purchase money by other evidence than the mere recitation of payment in the deed. 23 Tex. 447.

Whether a lien has been lost by the failure to keep alive a judgment by the issuance of executions is a matter for the defendant in execution, and a person claiming adversely cannot avail himself of the irregularity in the sale. Pas. Dig. arts. 3953, 3954, 3783, notes 935, 936, 873; 13 Tex. 598;27 Tex. 593.

The inadequacy of price paid at sheriff's sale is an objection which can be made only by the injured party, who is the defendant in the execution; persons claiming as subsequent purchasers with notice cannot be heard to urge this objection.

APPEAL from Jefferson. The case was tried before Hon. JAMES M. MAXCY, one of the district judges.

This was an action of trespass to try title and to remove clouds from title, brought by the appellee, James D. Bullock, against John Collier, the intestate of the appellant, George W. Hawley, in the district court of Jefferson county, the petition having been filed on the 16th September, 1857. The land sought to be recovered by this suit is the north half of a league originally granted to James D. Bullock, less one hundred acres, situated on the west bank of the Neches river, in Jefferson county. Collier dying during the pendency of the suit, William Lewis became his administrator, and was made a party in his stead; but he ceasing to be administrator, George W. Hawley was appointed administrator, de bonis non, of the estate of Collier, and was made party defendant to this suit. The petition averred title in the plaintiff to the land, and charged that defendant, Collier, set up a false and fraudulent claim to the same, and prayed judgment for the land, and that Collier's title be set aside and declared null and void. An amended petition, subsequently filed, set out the boundaries of the half league sued for, and yet another amendment, filed at a later day, declared that the land embraced by the pretended titles of the defendant, and described in them, is not the identical land which plaintiff sues for and seeks to recover. The defendant, in his answer, filed a general demurrer, a general denial, plead not guilty, and, in a special plea, set up title in himself to the land in controversy, deraigning such title from the government to himself. Defendant also plead the statute of limitation of three and five years.

The case was tried at the fall term, 1860, of the district court.

All the documentary evidence read to the jury, both by the plaintiff and defendant, was read by consent of the parties, all exceptions to the same having been waived for the purposes of the trial. The following were substantially the facts proved on the trial: The plaintiff read to the jury from the records of Jefferson county the copy of the original grant of the league of land to James W. Bullock, dated 17th January, 1835, and also a copy of a deed of conveyance from James W. Bullock to plaintiff, James D. Bullock, for the north half of the said league, which deed bears date on the 15th day of July, 1857. The plaintiff then proved by the witness, Wendling, that the plaintiff claimed the land in controversy in the year 1857; that the witness was living on the land at that time, when plaintiff came to his house asserting claim to the land, and sold witness one hundred acres of it, for which witness paid him $112.50. This witness, Wendling, upon his cross-examination, testified that he was, in 1852, put in possession of the land in controversy in this suit by John Collier, deceased, the original defendant, and that he held the same under Collier, continuously, up to 1857, when the plaintiff, Bullock, came and claimed it. Such were the only facts proved by the plaintiff. The defendant then, by the consent of plaintiff, read in evidence the following instrument in writing, viz.:

1. Bond in the penalty of $1,990, executed by James W. Bullock to David Brown, dated on the 27th January, 1835, conditioned that Brown should locate the league of land to which Bullock was by law entitled, and that Bullock should convey to him, by good title, one-half of the league, when so located, as compensation for the locating of the same.

2. A deed of conveyance executed on the 8th day of May, 1835, before Augustus Hotchkiss, judge of the first instance, by James W. Bullock to David Brown, conveying one-half the league granted to Bullock to Brown, in conformity with the stipulation of the bond, and describing the boundaries of the land so conveyed.

3. A deed of conveyance from David Brown to William K. English, conveying from the former to the latter the north half of the James W. Bullock league in Jefferson county, dated the 14th December, 1844, and recorded in Jefferson county, on the 22d August, 1849.

4. A certified copy of a judgment and execution; the judgment rendered in the district court of Nacogdoches county, on the 29th September, 1846, in favor of Almazin Houston, and against William K. English, for $2,311.68, and the execution therein issued on the 20th day of August, 1850, directed to the sheriff of Jefferson county, together with the return of the sheriff of Jefferson county upon the same.

5. A deed of conveyance from the sheriff of Jefferson county to defendant, John Collier, reciting the sale, by the former, of the north half of the James W. Bullock league, under the execution, and its purchase by Collier, bearing date the 2d day of October, 1850.

6. A deed from James W. Bullock to Alexander Horton, dated 5th July, 1848, conveying to Horton the south half of the league granted to Bullock.

7. A deed from Alexander Horton to Cartwright conveying from the former to the latter the south half of the James W. Bullock league, dated February, 1842.

George W. O'Bryan testified that the plaintiff, James D. Bullock, is the son of James W. Bullock; that he knew him in Jefferson county, in the year 1857; witness was clerk of the county court of Jefferson county; plaintiff, Bullock, came into the clerk's office one day, when witness suggested to him that he, witness, knew of no record evidence of a conveyance from plaintiff's father for the north half of his headright league, it being the land in controversy; plaintiff seemed to be at the first of it; witness and plaintiff then examined the records, but found no deed from James W. Bullock to Brown; plaintiff knew of Collier's claims. After this examination, plaintiff went off up north, and returned with his deed from his father to the land in controversy; plaintiff had but little means known to witness.

Such was the testimony adduced in the case. There were a verdict and judgment for the plaintiff for the land claimed. The defendant moved the court for a new trial; which motion was overruled. The defendant appealed, and assigned as error, 1, The charge of the court to the jury; 2, The refusal of the court to give the charges asked by defendant; 3, The refusal to grant defendant a new trial; 4, That the verdict was against law and evidence; 5, That portion of the charge of the court respecting the effect of a sheriff's sale was especially erroneous, and well calculated to mislead the jury, and was not justified either by the law or facts of the case.

The charge of the court sets out with the declaration, that the legal effect of the documentary evidence before the jury is, that the title is in the plaintiff, and unless the jury believe that the title to the north half of James W. Bullock's headright league of land passed out of James W. Bullock, the grantor of the plaintiff, by the sheriff's sale and deed, valid in law, to John Collier, they will find for the plaintiff. The succeeding clause of the charge is in these words: “But if you believe from the evidence that the sheriff's levy and sale are valid in law of the whole league, without any other proof to identify the sheriff's levy and sale of the north half of said league, you will find for the plaintiff.” The jury were further instructed, that in order to make the sheriff's sale...