Mainwarring v. Templeman

• Citation: 51 Tex. 205
• Parties: R. AND E. R. MAINWARRING, APPELLANTS, v. R. B. TEMPLEMAN, APPELLEE. R. B. TEMPLEMAN, PLAINTIFF IN ERROR, v. R. AND E. R. MAINWARRING, DEFENDANTS IN ERROR.
• Decision Date: 01 January 1879
• Court: Texas Supreme Court

51 Tex. 205

R. AND E. R. MAINWARRING, APPELLANTS,

v.R. B. TEMPLEMAN, APPELLEE.

R. B. TEMPLEMAN, PLAINTIFF IN ERROR,

v.R. AND E. R. MAINWARRING, DEFENDANTS IN ERROR.

Supreme Court of Texas.

1879.

APPEAL from Grimes. Tried below before the Hon. James R. Burnett.

F. Charles Hume, for Mainwarring, cited Mullins v. Wimberly, 50 Tex., 457;Hawley v. Bullock, 29 Tex., 222;Watkins v. Edwards, 23 Tex., 447.

Hutchison & Carrington, for Templeman.--If the judgment of John M. Bateman et al. against C. S. Taliaferro and D. D. Atcheson was obtained without notice to the judgment creditors of this prior unrecorded conveyance to Mrs. E. R. Mainwarring, then the lien of the judgment attached to the land, (being in Grimes county,) and as against those creditors such a deed was void. (Bennett v. Cocks, 15 Tex., 67;Blankenship v. Douglas, 26 Tex., 229;Ayres v. Duprey, 27 Tex., 607;Grace v. Wade, 45 Tex., 522.)

Appellee does not claim as a subsequent purchaser for valuable consideration without notice, but he relies upon the rights of the judgment creditors, himself the largest owner of the judgment. In order to be of any value, the judgment and a sale thereunder must carry just such rights to the purchaser under it as resided in the judgment creditor. This, too, we regard as clearly settled. (2 Lead. Cases in Equity, pp. 75-79.) What is the common-law doctrine, is a question of no significance as against the terms of our statutes, which expressly qualify that rule and furnish the law of this case, so far as applicable.

Is there anything in the facts of this case to charge such notice upon the judgment creditors, under whose lien this property was purchased by appellee, or to deprive them of the protection of the statute? Plaintiff made out his case. Defendants' title rested upon this deed from Atchison to Mrs. Mainwarring, made before but recorded after the judgment was obtained. This put plaintiff within the terms of the statute, and it devolved upon the defendants to put him out by charging and proving notice home upon him. (McMechan v. Griffing, 3 Pick., 154;Emmons v. Murray, 16 N. H., 386;Wilson v. Williams, 25 Tex., 54.)

Actual notice consists of express information brought directly home to a party, or an actual knowledge of such circumstances as should lead an ordinarily prudent person to the knowledge of such fact. (2 Bouv. Law Dic., p. 236; 2 Sugd. on Vend., p. 527; Wethered v. Boon, 17 Tex., 149.)

The registration of an instrument in the manner required by the statute, is the highest order of constructive notice; next to which, in classes distinguished by the circumstances of each case, come all those facts and circumstances which exist, but are not actually known to the party sought to be affected, by which men of ordinary prudence and care are put upon inquiry and charged by the law with the knowledge of what they should have known, but either voluntarily concealed from themselves or neglected the plain duty imposed upon them by common sense to look into. No exact rule has been or can be laid down for such notice, but this definition approximates the idea running through the cases and usually furnishing their rule of government. (Wethered v. Boon, 17 Tex., 149;Hawley v. Bullock, 29 Tex., 222.)

There is still a refinement of this general rule. Where the registration laws provide a method of giving constructive notice to the world of the existence of an instrument whose record is provided for, we apprehend the rule to be, that the proof of notice sufficient to break in upon the register laws and relieve the holder of the unrecorded instrument of the consequences of his non-compliance with the statute, must be so clear and unequivocal as to raise a presumption of fraud in the subsequent purchaser or in the creditor. (Le Neve v. Le Neve, 2 Lead. Cas. in Eq., 133; Hine v. Dodd, 2 Atk., 275; Wyatt v. Barwell, 19 Ves., 439; 2 Sugden on Vendors, p. 529; 10 Johns., 457;8 Johns., 140;2 Johns. Ch., 162, 190;Fleming v. Burgin, 2 Ired. Eq., 584; Harris v. Arnold, 1 R. I., 137.)

In Harris v. Arnold, 1 R. I., 137, it is said: “If, then, it be upon the ground of fraud that a subsequent purchaser with notice is precluded, as the authorities show, the proof of notice must be for the purpose of inferring therefrom the fraudulent design of defeating the deed, and must be such as to evince a design to defeat a title already executed; to defeat a title already passed as between the parties; to take advantage of an omission to record, when the record would give no information of which he was not already possessed.” (6 Greenl., 256; 16 Ves. Jr., 253; 5 N. H., 188.)

Upon similar reasoning is the whole doctrine of notice, and its operation against the party to be affected by it, based. While it would seem, under this view, as say the cases recognizing notice other than record, to be a manifest injustice to take a title or a lien, with full notice of a previously acquired title, or after having willfully neglected to inquire for fear of finding to a certainty the existence of facts suspected to exist, still, where the deed has been taken or the lien acquired upon the apparent faith that the record showed a clear title in the grantee or judgment debtor, “the proof should be extremely clear” (as said Lord Hardwicke, in Hine v. Dodd, 2 Atk., 275) that the second purchaser knew, or, with a negligence amounting to fraud, failed to ascertain that his grantee's title had passed to another, or he is divested of property purchased and paid for in good faith, or of a lien acquired by the exercise of that diligence which the law always favors. No such suspicion of notice, or uncertain, indifferent evidence of it, is sufficient; but it must be clear, positive, unequivocal. (Wethered v. Boon, 17 Tex., 143, 150;Briscoe v. Bronaugh, 1 Tex., 326;Watkins v. Edwards, 23 Tex., 443;Leach v. Ansbacher, 55 Penn., 85;McConnel v. Reed, 4 Scam., 117, 147; Paschal's Dig., art. 4994.)

(Counsel discussed Blankenship v. Douglas, 26 Tex., 226, and Ayres v. Duprey, 27 Tex., 593, and continued:)

But while the courts of Texas have, in the main, confined themselves to the enunciation of the general proposition, and no case has arisen embracing the point at issue in this case, we have no hesitancy in affirming our belief that the unbroken chain of authority sustains the following propositions:

1st. Possession, to be equivalent to registration, or to amount to notice of a prior unrecorded deed, must be open, notorious, visible, exclusive, and of such a character as not to mislead the public.

2d. The possession must be inconsistent with the recorded title, and must afford certain indications that the record does not show the true owner of the land.

3d. Where the grantor was in possession of the land previous to his prior conveyance, either by himself or tenant, then there must have been a visible and apparent change of possession to visit notice upon third parties.

4th. The mere attornment of a tenant of the grantor to the grantee is not sufficient, of itself, to prove notice of the deed. (2 Sugd. on Vend., 8th Am. ed., 543, 544, note a, and cases cited; 3 Wash. on Real Prop., 284; Hewes v. Wiswell, 8 Greenl., 94; Flagg v. Mann, 2 Sumner, 558;Farnsworth v. Childs, 4 Mass., 637;McMechan v. Griffing, 3 Pick., 156;Parker v. Osgood, 3 Allen, 490;Glass v. Hulbert, 102 Mass., 34; Veazie v. Parker, 23 Maine, 170; Butler v. Stevens, 26 Maine, 484; Rogers v. Jones, 8 N. H., 271;Emmons v. Murray, 16 N. H., 398;Patten v. Moore, 32 N. H., 385;Woods v. Farmere, 7 Watts, 383;Plumer v. Robinson, 6 S. & R., 179;Scott v. Gallagher, 14 S. & R., 333;Hood v. Fahnestock, 8 Watts, 489, and 1 Barr, 474; Leach v. Ansbacher, 55 Penn. St., 89; Williamson v. Brown, 15 N. Y., 354;Cook v. Travis, 20 N. Y., 400;Fassett v. Smith, 23 N. Y., 252;Ely v. Wilcox, 20 Wis., 531;Fair v. Stevenot, 29 Cal., 490;Smith v. Yule, 31 Cal., 184; Harris v. Arnold, 1 R. I., 137.)

GOULD, ASSOCIATE JUSTICE.

Templeman sued Mainwarring and wife for two adjacent tracts of land, two hundred and twenty-one acres and two hundred and fifty-nine acres, claiming as purchaser, in December, 1875, at an execution sale, as the property of D. D. Atcheson, under a judgment of date February 13, 1874. In December preceding this judgment, Atcheson conveyed to R. Mainwarring by deed--not filed for record until June, 1874--a tract of land, described by lines and boundaries which embrace the two hundred and fifty-nine acre tract, and which Mainwarring and wife contend embrace also the two hundred and twenty-one acre tract. One of the calls of the deed reads as follows: “Thence from said corner in a line to the rock culvert on the railroad and to the division line of said Arnold league.” There are two rock culverts on the railroad, a large and a small one. If the large rock culvert be the one intended, then the deed embraced both tracts of land. If, on the other hand, the small rock culvert be the one called for in the deed, then it embraced only the two hundred and fifty-nine acre tract. The land conveyed is not described otherwise than by its boundaries, nor are any recitals as to price or quantity, or anything else, referred to by counsel on either side as tending to settle the question which culvert was intended. The evidence as to what land was intended to be conveyed was conflicting. At the time the deed was executed, Atcheson was in possession of both tracts by his tenants, but the tenant occupying the two hundred and fifty-nine acre tract became at once, under a written lease, the tenant of the Mainwarrings, and continued to occupy that tract, as such...