Kimball v. Houston Oil Co.

• Decision Date: 11 April 1906
• Citation: 94 S.W. 423
• Parties: KIMBALL et al. v. HOUSTON OIL CO. OF TEXAS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

94 S.W. 423

KIMBALL et al. v. HOUSTON OIL CO. OF TEXAS et al.^*

Court of Civil Appeals of Texas.

April 11, 1906.

Rehearing Denied May 9, 1906.

Appeal from District Court, Hardin County; L. B. Hightower, Judge.

Action by Walter B. Kimball and others against the Houston Oil Company of Texas and others. There was a judgment for defendants, and plaintiffs appeal. Affirmed.

S. M. Johnson, E. E. Easterling, J. D. Martin, and Ewing & Rig, for appellants. Denman, Franklin & McGown, Taliaferro, Nall & Dies, and Lanier & Martin, for appellees.

FLY, J.

This is an action of trespass to try title to 4,420 acres of land in Hardin county, instituted by appellants against appellees. The latter answered by general demurrer, general denial, and pleas of not guilty and limitations of three, five, and ten years. The cause was tried without the aid of a jury and judgment rendered for appellees.

There is no statement of facts, and the facts found by the trial judge are as follows: "(1) That the league of land in controversy was granted to O. C. Nelson by the Mexican government on August 18, 1835. (2) That both parties to this suit claim the league of land under a deed from O. C. Nelson, the common source. (3) That defendants claim under, and introduced in evidence, warranty deed from O. C. Nelson to David Brown executed on November 28, 1837, reciting a consideration of $1,000 paid, acknowledged before E. O. Legrande, chief justice and ex officio notary public of San Augustine county, on same date, and recorded in Menard county records on 16th day of March, 1842, and in Hardin county records on 28th day of February, 1859. (4) That defendants introduced in evidence a regular chain of title by mesne conveyances of the league down to themselves connecting themselves with the above and foregoing deed from Nelson to Brown. (5) Plaintiffs claim under, and introduced in evidence, a general warranty deed from O. C. Nelson to Isam Parmer, executed on the 13th day of March, 1838, reciting a consideration of $1,200 paid, acknowledged before E. O. Legrande, chief justice and ex officio notary public of San Augustine county, Tex., same date and recorded in Menard county records February 23, 1842, and a certified copy from said records in Hardin county, August 10, 1901. (6) That plaintiffs next introduced in evidence a regular chain of title by mesne conveyances of the league down to Timothy Kimball connecting said Kimball with the above and foregoing deed to Isam Parmer, the deed to Timothy Kimball being dated 13th day of April, 1850. (7) That plaintiffs are the heirs of Timothy Kimball, deceased. (8) That the plaintiffs failed to establish by credible testimony that Isam Parmer paid a valuable consideration for the land. (9) That no actual notice was shown by the evidence to have been given Isam Parmer at the date of his purchase from O. C. Nelson, of the existence of the deed from O. C. Nelson to David Brown."

From the foregoing conclusions of fact and the conclusions of law of the trial court it is clear that the burden of establishing that Isam Parmer was a purchaser without notice for a valuable consideration, was placed upon appellants who held the junior title, and it is the contention of appellants that under the act of December 20, 1836 (Laws 1836, p. 148), which was in effect when Parmer bought, the burden rested upon appellees claiming under a title unrecorded when the junior title was acquired, to show that appellants were not innocent purchasers for value, without notice.

Section 40 (page 156) of the act in question (1 Gammel's Laws, p. 1201) is as follows: "No deed, conveyance, lien or other instrument of writing, shall take effect as regards the interests and rights of third parties, until the same shall have been duly proven and presented to the court, as required by this act, for the recording of land titles. And it shall be the duty of the clerk to note particularly the time when such deed, conveyance, lien, or other instrument is presented, and to record them in the order presented." It does not matter what might have been the construction that would have been placed upon that section had it never been construed, for in the early history of the state, in the case of Crosby v. Huston, 1 Tex. 203, a construction was placed upon it by the Supreme Court, which has never been questioned by the decision of any court of Texas. On the other hand, it has been cited with approval a number of times. Grumbles v. Sneed, 22 Tex. 565; Russell v. Farquhar, 55 Tex. 355; Airhart v. Massieu, 98 U. S. 491, 25 L. Ed. 213. We are aware that Judge Lipscomb expresses the individual opinion in Guilbeau v. Mays, 15 Tex. 411, that the construction given to the statute in Crosby v. Huston is not in consonance with his views, but he admitted that it was the law of the Supreme Court.

In the leading case cited, Chief Justice Hemphill said: "Were this provision presented to a mind unbiased, or unenlightened by the construction of judicial tribunals on similar statutory regulations, the conclusion would most probably be that a conveyance not duly proven and presented could no more affect the rights of third parties, than if it had never been executed; that proof and presentment were as essential to its operation on these rights as the execution itself to the instrument. But it has been the settled doctrine in the courts of the United States, and in the courts of equity in England, in the exposition of statutes requiring conveyances to be registered in order to make them valid titles against subsequent purchasers, that, if a subsequent purchaser has notice at the time of his purchase of any prior unregistered conveyance, he shall not avail himself of his title against that prior conveyance. All such laws are regarded as designed to protect creditors and purchasers against prior secret conveyances and incumbrances, and that, where there was actual notice of such prior conveyances, the purpose of the law was fully accomplished, and that, the reason of the law ceasing, the law itself...