Rodgers v. Burchard

• Decision Date: 01 January 1870
• Citation: 34 Tex. 441
• Parties: J. C. RODGERS v. P. BURCHARD AND OTHERS.
• Court: Texas Supreme Court

34 Tex. 441

J. C. RODGERS

v.P. BURCHARD AND OTHERS.

Supreme Court of Texas.

1870.

1. An absolute deed to land, though unregistered, passes to the grantee the entire title of the grantor, and leaves nothing to descend to the heirs of the grantor; and therefore a subsequent purchaser from such heirs acquires nothing.

2. Mere laches of the grantee, or neglect to have his deed recorded, can never operate to revest the title in his grantor.

3. Though in this state a subsequent deed, made on a valuable consideration and without notice of prior unregistered deed, will, if duly recorded, take precedence of the prior unregistered deed; yet this principle only prevails when both parties claim under the same grantor. And if one party claims from an heir, and the other from the ancestor of the heir, they do not claim under the same grantor.

4. A quit-claim deed conveys only such right, title or interest as the grantor has at the time it is made; and a party claiming under such a deed cannot be deemed a bona fide purchaser of any greater interest than his grantor then had.

5. A quit-claim deed cannot exclude the operation of a prior unregistered deed.

6. The rulings in Watkins v. Edwards, 23 Tex. 447, on the subject of innocent purchasers for value and without notice, are re-affirmed in the present case.

ERROR from Milam. Tried below before the Hon. R. E. B. Baylor.

This cause was tried in the district court in the year 1860. The material facts are so clearly stated in the opinion of this court, that nothing remains to be added respecting them. A jury was waived in the court below, and the cause submitted to the court on the facts as well as the law; and judgment was rendered for defendants, Burchard and others.

Sayles & Bassetts, for the plaintiff in error. On the tenth of September, 1835, J. C. Gafford, from whom both parties deraign title, received a grant of a headright league of land. On the twelfth of January, 1836, Gafford sold Steele one-half of the league. On the second of February, 1836, Steele sold the half league so purchased, to Burchard, the ancestor of the defendants.

In June, 1836, Gafford sold the northwest half of the league to Bacon. In May, 1843, one Hitchcock, as curator for Gafford, conveyed to one Henry, a judgment creditor of Gafford, the west half of the same league. These two conveyances were duly recorded, and apparently included the entire league, but there were in fact sixteen hundred acres not embraced in them.

Gafford, the original grantee, died in Arkansas in 1845 or 1846, and in September and October, 1858, Gafford's heirs conveyed to the appellant by deed, “all their right, title and interest” in the headright of their ancestor.

The evidence shows that the deeds from Gafford to Steele, and from Steele to Burchard, had never been recorded; that the land had not been rendered for taxes by the claimants under those deeds, and that the title of the defendants had never been heard of until after the sale to the appellant; that the heirs of Gafford had publicly offered the land for sale five or six years prior to the purchase by the appellant, and that persons were prevented from purchasing by the fact that the deed to Bacon and the deed to Hitchcock apparently included the whole league; that the appellant gave the Gafford heirs another tract of land, in exchange, that suited their purpose better than the tract sold by them, and was the best offer they received, after having offered the land for sale for five or six years, and advertising at the county seat of Milam county, and at several other places in the same county. Upon the foregoing state of facts judgment was rendered by the court below in favor of the defendants.

The following questions are presented by the record: 1. Are the conveyances from Gafford to Steele, and from Steele to Burchard, invalid as to subsequent purchasers by reason of their not having been recorded in accordance with the requirements of the registry law of 1836? 2. Can a bona fide purchaser, for value from the heirs, hold lands against a prior unrecorded deed of their ancestor? 3. Is one who holds under a quit-claim deed a purchaser within the meaning of the statute?

The first question has been decided in the affirmative by the supreme court of this state, in the case of Watson v. Chalk, 11 Tex. 89, where it is held that a conveyance of land by public act, before a judge or notary, is included in the provisions of the act of December 20, 1836, and is required to be proved and recorded in the manner therein prescribed under pain of being supplanted by a subsequent conveyance to an innocent purchaser. The same doctrine is held in the case of Guilbeau v. Mays, 15 Tex. 413; and Wool v. Kenny, 25 Tex., and is now too well settled to be open for discussion.

2. Is a purchaser from an heir in a position to claim the protection of the statute against a prior unrecorded conveyance from the ancestor?

The fortieth section of the registry law (Pas. Dig. 4983) declares that “no deed, conveyance, lien, or other instrument of writing, shall take effect, as regards the rights and interests of third persons, until the same shall have been duly proven and presented to the court, as required by this act, for the recording of land titles.”

Under our laws all the estate of a decedent vests, upon his death, immediately in his devisees or heirs at law, subject only to administration for the payment of debts. Pas. Dig. 1373, Bufford v. Holleman, 10 Tex. 575;Blair v. Cisneros, 10 Tex. 40;Chubb v. Johnson, 11 Tex. 475. The heir upon the death of the ancestor, is at once clothed with his apparent title to property, and third parties may deal with him as they could have dealt with the ancestor.

It is insisted by the appellees, that as the ancestor had previously sold the land, that the title to it did not descend to the heir, and as his title is by descent he could convey no greater title than he acquired. But this argument gives effect to the prior unregistered conveyance, which the statute declares shall have no effect as regards the interests and rights of third parties. It will not be questioned that an heir could make a valid conveyance of lands acquired by descent. While as against himself an unrecorded deed would have effect, because he is privy in estate, it can have no effect as to third parties dealing with him in the character of heir, and as to their interests and rights, the conveyance is as if it had never been made. The policy of the registration law is to deal with the apparent title; for the purpose of preventing fraud, it requires the grantee in every deed and conveyance of lands to place his legal title upon record, and as a penalty for his neglect to do so, declares that the legal title shall have no effect against the apparent title, so far as the interests and rights of third parties are concerned.

The vendor by his private deed, although not registered, had parted with the legal title, yet as to third parties he holds the apparent title, and as to them the unrecorded deed will have no effect. If the ancestor has parted with the legal title, the apparent title is not divested, because the deed is not recorded, and the apparent title vests in the heir, because as to third parties dealing with him the unrecorded deed can have no effect.

It has been held by the supreme court of Kentucky, in the case of Rolls v. Graham, 4 Mon. 120, and Hancock v. Beverley's Heirs, 6 B. Mon. 531, that under the registration law of that state, which declared an unrecorded deed invalid as to creditors and purchasers, that a purchaser from the heir was not within the statute, but the decision is based expressly upon the peculiar wording of the statute of that state.

In Tennessee, upon a statute somewhat similar, the court arrived at a contrary conclusion, and held that where lands were sold by the ancestor, by deed, which was not proved or recorded as required by law, and were sold again by the heir, after the death of the ancestor, to persons without notice, that the latter purchasers took a good title. Mr. Justice Green, in delivering the opinion of this says, “It is immaterial whether the purchaser holds under the ancestor or the heir. The estate is thrown upon the heir with all the rights the ancestor enjoyed, and subject to all the incumbrances he had created on it. The registry acts are intended for the protection of the community from impositions and frauds. If a purchaser who is not in possession of the land, may keep his deed in his pocket fifteen years, concealed from the world, and then produce it, and overreach all other deeds which in the meantime may have been made for the same land, no man would be safe in the purchase of an estate. The mischief would equally exist, whether the ancestor or heir continue the apparent legal owner of an estate which had been sold, as subsequent dealers would as readily purchase of the heir as the ancestor, and the heir would be much more apt to sell, having possibly no knowledge of any previous sale by the ancestor, than the ancestor, knowing he had parted with his estate, would undertake to sell it again. All the reasons, therefore, why a deed should be so registered, exist in such a case as the one before us, as exist in any other, and it must be concluded, therefore, that the saving in the statute is intended to apply to it.” McCulloch v. Endaly, Yerg. 346.

The reasoning of the court in the case just cited, applies with peculiar force to the case at bar arising under our statute.

The deed under which the heirs of Burchard claim was executed in 1836, twenty-two years before the conveyance to the plaintiff. During that long interval of time, it was not placed upon the record; the claim of the Burchard heirs had never been heard of by any of the witnesses, one of whom had been tax collector for eight years, and another clerk of the district court from 1846 to 1852, and still another who had resided in the county ever since its...