Paris Grocer Co. v. Burks

• Citation: 105 S.W. 174
• Court: Supreme Court of Texas
• Decision Date: 13 November 1907
• Parties: PARIS GROCER CO. et al. v. BURKS et al.

Page 174

105 S.W. 174

PARIS GROCER CO. et al. v. BURKS et al.

Supreme Court of Texas.

November 13, 1907.

Error from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by the Paris Grocer Company against W. H. Burks and others, in which J. R. Shelton, as trustee in bankruptcy of defendant Burks, intervened, and such action was consolidated with one brought by the trustee against J. C. Burks and another. From a judgment of the Court of Civil Appeals (99 S. W. 1135), affirming a judgment for defendants, plaintiff and intervener bring error. Partly reversed and remanded, and partly affirmed.

Lennox & Lennox, for plaintiffs in error. A. L. Beaty, for defendants in error

WILLIAMS, J.

A full statement of the character of this litigation will be found in the opinion of the Court of Civil Appeals. 99 S. W. 1135, 17 Tex. Ct. Rep. 892. As the questions raised by the application for a writ of error relate only to the controversy concerning the tract of 18 acres of land referred to below, the statement here will be confined to the facts on which those questions depend. Mrs. I. H. Burks was the owner of a tract of 72 acres of land, which she occupied as a home. For the 18-acre tract now in controversy, originally a part of the first-named tract, she executed to her son, W. H. Burks, a deed dated May 20, 1902, and recorded June 9, 1902. The consideration recited in this deed was $1 and love and affection, but it was alleged and proved that at the time of its execution the grantee orally agreed to build and live on the land so conveyed, and that, if he should fail to do so, he would reconvey it to Mrs. Burks. Not having performed this agreement, and being unable to do so, W. H. Burks, in accordance with it, reconveyed to his mother by deed dated March 30, 1903, and reciting as its consideration the sum of one dollar and love and affection. This deed was not recorded until February 3, 1904. The Paris Grocer Company seeks in this case to subject this tract to the lien of an attachment against W. H. Burks which at the suit of the grocer company was fixed upon it January 20, 1904. The grocer company, before it levied the writ, had no notice of the unrecorded deed from W. H. Burks to his mother, unless there was such possession by her as, in law, constituted notice. Prior to the conveyance by Mrs. Burks to her son the 72 acres were and yet are inclosed by a fence. In the southeast corner there was an inside inclosure planted with alfalfa, which from time to time was cut and used by Mrs. Burks. Before making the deed to her son, and preparatory to it, she caused the 18-acre tract in controversy upon the eastern side of the large tract to be surveyed and its lines to be marked with stakes; the line dividing it from the remainder of the tract from which it was taken running through the inner inclosure, so as to leave a part of it and of the fences inclosing it on the land conveyed to her son and a part on that retained by her. She continuously used the whole of this inclosure up to the time of the levy without change in such use, except that during the year immediately preceding the levy she discontinued the cutting of the alfalfa and used the land as a pasture. During the same period she also used the remainder of the 18 acres in connection with her home as a pasture. None of her houses or other improvements, except the fences referred to, were ever on the tract in controversy. From the autumn of 1903 down to the time of trial W H. Burks lived with his mother in her home, except for a time in the summer of 1904 after the attachment was levied. This is a contention between the parties as to the fact last stated, but the uncontradicted evidence in the record shows it to be as stated.

That the lien of the attachment must prevail over the unrecorded deed, unless the creditor, prior to the levy, had notice of such deed, is a proposition put beyond all question by the decisions of this court. The right of the creditor is purely statutory, and requires nothing but the concurrence of the conditions required by the statute to make it complete. The statute by its terms makes void the unrecorded deed as against "all creditors," but the courts hold this to mean all creditors who have acquired liens without notice of the deed. When these elements exist the right of the creditor is perfect in law, and no considerations of equity or questions of estoppel enter into the case. It is wholly immaterial whether the creditor has ever examined the records as to the title of his debtor or not, since a deed of the property executed by the latter is by the statute made void as against the lien of the former, unless he is affected with notice. It is equally well settled, however, that an open, exclusive, and visible possession, maintained by the holder of the unrecorded deed when the right of the creditor attaches, is notice of the right under which it is held. This is so, for the reason that one who seeks to acquire an interest in or with respect to land is expected, in the exercise of common prudence, to learn of a possession held by others than him whose rights he purposes to acquire, and to make inquiry of the possessor as to the nature of the claim under which he holds. Watkins v. Edwards, 23 Tex. 443; Mullins v. Wimberly, 50 Tex. 464. Having such opportunities, of which prudence dictates that he shall avail himself, one who has omitted to do so will not be heard to deny that he had notice of a fact of the existence of which he was thus put upon inquiry. But the fundamental fact essential to the application of this doctrine is that of a possession visibly that of some one who is not the person with whom the purchaser or creditor purposes to deal. He is not required to institute inquiries as to the existence of rights of which there is no evidence upon the records, unless there be some fact which he knows or should know sufficient to excite inquiry in the minds of prudent persons. A possession openly that of one other than his debtor or vendor is such a fact; but is a possession sufficient which does not appear to be that of a third person? The reason upon which the doctrine is founded does not warrant an affirmative answer. The authorities lay it down that the possession must be open and visible and unequivocal, meaning that it must be openly, visibly, and unequivocally that of the claimant under the unrecorded instrument. Now, it is true that the evidence adduced at the trial develops that Mrs. Burks had possession of the 18 acres at the time of the levy; but it is not true that such possession was so held and exercised that it appeared to be hers, rather than that of W. H. Burks. She did not reside on it and had no tenant on it. She used it in connection with the tract on which she did reside; but it must not be forgotten that by the deed she had severed it and the parts of the fence which were on it from her own tract, and made it a separate tract belonging to her son. His situation with reference to it was such as to have enabled him to put it to the use shown to have been made of it. That use, apparently, was only such as might as well have been attributed by an observer to him as to her. Nothing in it would have been suggested to one having no other knowledge that it...