McKamey v. Thorp

• Decision Date: 27 May 1884
• Docket Number: Case No. 5190.
• Citation: 61 Tex. 648
• Parties: LETITIA G. MCKAMEY ET AL. v. P. THORP ET AL.
• Court: Texas Supreme Court

61 Tex. 648

LETITIA G. MCKAMEY ET AL.

v.P. THORP ET AL.

Case No. 5190.

Supreme Court of Texas.

May 27, 1884.

APPEAL from Hood. Tried below before the Hon. T. L. Nugent.

Letitia G. McKamey, joined by her husband, Wm. N. McKamey, sued appellees P. Thorp et al. in trespass to try title to a house and lot at Thorp's Spring. Plaintiffs alleged that the lot was the separate property of the wife. Defendants answered by general demurrer and not guilty. Judgment that plaintiff take nothing, etc.

The property in question was paid for out of Mrs. McKamey's separate means, held by her husband for her and which was inherited,??in the land, and the deeds from Walker and wife taken to her with the intent of vesting the title in her in her separate right.

The defendants, over the objections of plaintiff, proved many facts tending to show the insolvency of Wm. N. McKamey, husband of the plaintiff L. G. McKamey, his indebtedness, evasion and delay of creditors, etc. Defendant claimed title through a judgment and execution sale, wherein H. J. Thompson was plaintiff and Wm. N. McKamey was defendant, and Thompson, through his attorneys, McCall & McCall, became the purchaser, crediting the sum bid on the execution.

Thomas T. Ewell, for appellants.

McCall & McCall, for appellees, cited: Parker v. Coop, 61 Tex., 111; Wallace v. Campbell, 54 Tex., 87;Kirk v. Navigation Co., 49 Tex., 215;Cooke v. Bremond, 27 Tex., 459; Leading Cases in Equity, vol. 2, pp. 109, 110.

WILLIE, CHIEF JUSTICE.

The court did not err in admitting the testimony referred to in the first and second assignments of error. Our Revised Statutes provide that any defense to an action of trespass to try title may be given in evidence under the plea of not guilty, except the statute of limitations, which must be specially pleaded. The testimony was offered to show fraud in the acquisition of title to the land by Mrs. McKamey, and that Thompson was an innocent purchaser without notice; either of which facts, if available as defenses, were as admissible under the pleas of not guilty as under an answer in which they were specially relied on.

The judge below, to whom the cause was submitted without a jury, has not placed his conclusions of fact and law upon record, and we are not, therefore, informed as to the grounds upon which his judgment in favor of the appellees was based.

There seems to be no evidence in the record to show that the deed to the land was taken in Mrs. McKamey's name for the purpose of defrauding the creditors of her husband. On the contrary, the whole evidence tends to show that she had inherited property from her father's estate, which had been converted into money and turned over to her husband, and of which he had had the use for many years; that it was the understanding between McKamey and his wife that this money was to be invested in property for her benefit, and that accordingly a portion of it was used in the purchase of the premises in controversy. If the money remained the property of Mrs. McKamey whilst in the hands of her husband, his creditors had no claim upon it, and to invest it in property for her benefit was no fraud upon their rights. If the transaction resulted in his becoming her debtor, it was entirely legal and proper for him to pay the debt, either wholly or in part, by purchasing the premises and having the title made directly to her.

The deed to Mrs. McKamey did not recite that the purchase money was her separate property, or that the conveyance was for her sole or separate use or benefit, or any other fact which gave notice of her ownership of the land described in it. By its terms the legal title to the land was placed in the community of herself and husband, but her money having paid for it, a resulting trust was created in her favor, and she became the equitable owner of the property.

The land was afterwards levied on and sold under an execution against McKamey, in favor of Thompson, the latter becoming the purchaser and paying for the land by crediting the amount of his bid upon the judgment on which the execution had issued.

There is no proof that Thompson had any notice of Mrs. McKamey's title or claim to the land, either at the date of the levy of the execution or of the sale at which he purchased.

The evidence introduced by the plaintiffs below to show such notice was not only meager and insufficient, but was contradicted by the testimony of the opposite party. Even had it been stronger, if thus contradicted, we should be compelled to treat the case as lacking in proof of notice, the judge below having found against the party upon whom rested the burden of making such proof. In the decision of this case, therefore, Thompson must be treated as having bought without knowledge of Mrs. McKamey's title, paying the purchase money by crediting it upon his judgment against her husband.

The defendants, who claim under Thompson, had full notice of her rights before they bought, and their title must stand or fall with that which was acquired by Thompson through his purchase at the sheriff's sale.

It is the well settled law of this court that an execution lien will hold good as against an unrecorded conveyance previously made to a third party by the judgment creditor. Ayers v. Duprey, 27 Tex., 594;Grace v. Wade, 45 Tex., 522;Borden v. McRae, 46 Tex., 396;Parker v. Coop, 2 Tex. L. R., 22 (60 Tex., 111);Grimes v. Hobson, 46 Tex., 416. Hence, where such a lien has been secured without notice, the purchaser at the sale made under the execution is protected in his title, whether he have knowledge of the unrecorded instrument at the time of his purchase or not. Id.

This is by force of the registration laws, which render all unrecorded conveyances void as against subsequent purchasers for value without notice, and as against all creditors, the latter being construed to be those who have liens upon the property. Id.

In such cases the purchaser at sheriff's sale, whether plaintiff in execution or not, has the benefit of the lien secured by the levy, and no notice received thereafter will affect his title. Id.

But as a resulting trust is not within the registration laws, and the holder of this equity cannot spread his title upon record, these rules are inapplicable to his case. Parker v. Coop, 60 Tex., 111. Hence a creditor claiming a mere statutory lien by judgment or execution has been held by this court not to be protected by reason simply of want of notice of such an equity; although it is otherwise in reference to a creditor by mortgage or deed of trust, o?? similar instruments, which are regarded as standing upon the same footing with conveyances by deed. Id.; Bailey & Pond v. Tindell, 2 Tex. L. R., 141; 2 Story's Eq. Jur., sec. 1502, note 2. Hence, also, an execution or judgment lien, obtained without notice of the resulting trust, cannot inure to the benefit of one buying at the sheriff's sale made under the execution. Parker v. Coop, supra.

The title of the latter as against the resulting trust must be determined without reference to any notice of it at the time of the record of the judgment or the levy of the execution. It must depend upon whether or not he had notice at the time of sale, and if not, then whether or not he was a purchaser for valuable consideration.

As Thompson bought the property in controversy without notice of Mrs. McKamey's title, the only question for our decision is: Was he a purchaser for valuable consideration, having paid the amount of his bid by crediting it upon his judgment against the defendant in execution?

A review of our decisions will show that in a few cases intimations have been made to the effect that...