Rule v. Richards

• Citation: 159 S.W. 386
• Parties: RULE v. RICHARDS.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 17 May 1913
• Court: Texas Court of Appeals

Page 386

159 S.W. 386

RULE v. RICHARDS.^†

Court of Civil Appeals of Texas. Amarillo.

May 17, 1913.

Rehearing Denied June 7, 1913.

Appeal from District Court, Cottle County; Jo A. P. Dickson, Judge.

Action by T. J. Richards against Johnnie Floyce Rule. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

See, also, 149 S. W. 1073.

M. M. Hankins and W. T. Perkins, both of Quanah, and Veale & Davidson, of Amarillo, for appellant. R. D. Browne, of Paducah, for appellee.

HUFF, C. J.

On April 14, 1910, the appellee, T. J. Richards, sued Johnnie Floyce Rule, appellant, to remove cloud from 27 town lots in the town of Paducah, Cottle county, in which he sets out his title specifically about as follows: First. Patent to R. Potts, dated September 20, 1893. Second. Warranty deed from R. Potts to R. E. Avent November 2, 1893, recorded April 4, 1894. Third. Judgment for debt, foreclosing attachment lien on the lots in question in a suit against R. E. Avent by S. B. Harwell, attachment levied on the property the 11th day of June, 1894. Fourth. Sheriff's deed, reciting, therein a sale, by virtue of an order of sale issued on said judgment, dated January 23, 1895, and filed for record January 30, 1895. Fifth. Warranty deed from S. B. Harwell and wife, N. A. Harwell to T. J. Richards, dated February 11, 1909, filed for record March 16, 1909. The appellee also pleaded three, five, and ten years' statutes of limitations and further alleges: "Plaintiff will further show to the court that the defendant's claim to said land and premises hereinabove described is founded upon the following instruments, to wit: (a) Deed from R. E. Avent to J. H. Rule, dated December 18, 1893, filed for record July 14, 1894, recorded in volume 6, p. 38, deed records of Cottle county, Tex.; (b) quitclaim deed from Mrs. Mary Rule, widow of J. H. Rule, to Johnnie Floyce Rule, dated June 2, 1910, filed for record June 13, 1910, and recorded in volume 18, p. 200, deed records of Cottle county, Tex. Fifth. This plaintiff will further represent to the court that the defendant is setting up some claim of title to the above-described lots and premises under and by virtue of said instruments, notwithstanding your plaintiff, by reason of the premises and matters herein set forth, is vested with full and complete fee-simple title to said land and premises and all the right, title, and interest that the defendant or those under whom he claims ever had, if any, in said land and premises has long since been divested out of defendant and those under whom she claims and is now vested in this plaintiff; that said instruments last mentioned and claims of the defendant thereunder operate as a cloud on the title of this plaintiff to said lands and premises, which your plaintiff is entitled to have removed." The petition closes with a prayer to remove the cloud and to recover the lots in question.

The appellant answered by general exception, general denial, plea of not guilty, and pleaded the title of appellant is as alleged, except that it consisted in part of a certain bond for title, executed May 19, 1893, by R. A. Avent to J. H. Rule, filed for record May 23, 1893, and recorded May 24, 1893, in the deed records of Cottle county. The court overruled the appellant's general exceptions and after trial rendered judgment for appellee, vesting the title in appellee to the lots and removing the cloud created by the instruments set out in appellee's petition.

The appellant, by the first assignment, alleges error in the action of the trial court in overruling the appellant's general exception to the petition, and by the second assignment that the court erred in admitting in evidence the testimony of S. B. Harwell to the effect that he did not have notice or knowledge that any person other than R. E. Avent owned or claimed any interest in or to the lots in question at the time he instituted suit against R. E. Avent, and at the time he had the attachment levied upon the property. Appellee objected to the testimony because it was immaterial, irrelevant, and incompetent. S. B. Harwell was the plaintiff in the suit against R. E. Avent in the justice court, precinct No. 1, Cottle county, in which attachment was issued and levied on the lots in question and foreclosed by the judgment of that court. The grounds in part of the appellant's exception and objection appears to be that it was incumbent on appellee to allege and prove that Harwell, when the land was levied on, did not have notice of appellant's claim to the lots. The petition did not allege the want of notice on the part of Harwell when the levy was made upon the lots.

On the former appeal of this case, on motion for rehearing, this court held: "It is necessary for him (appellee) to show by the evidence that either he or his vendor (Mrs. N. A. Harwell) bought said land for a valuable consideration without notice of the claim under which appellant holds, and, having failed in this because of the execution and record of the deed above referred to, it then becomes necessary for appellee to show affirmatively, in order to recover, that, at the time of the fixing of S. B. Harwell's attachment lien, he (the said S. B. Harwell) had no notice of the claim under which appellant holds." The court cited a number of decisions holding that a junior purchaser under a voluntary sale was required to show he had no notice of the previous unrecorded deed, and also cited the cases of L. & H. Blum Land Co. v. Harbin, 33 S. W. 153, and Walker v. Downs, 64 S. W. 682, which appear to place the burden on the junior claimant to prove that the execution plaintiff did not have notice of the adverse claim at the time of the levy. The two authorities support the court's holding in this case on the former appeal, but, as we now understand the holdings of the Supreme Court, this ruling was error. Barnett v. Squyres, 93 Tex. 193, 54 S. W. 241, 77 Am. St. Rep. 854; Turner v. Cochran, 94 Tex. 480, 61 S. W. 923. A discussion of the rule as announced by the Supreme Court will be found in the following cases: Rogers v. Houston, 60 S. W. 446, 448; Rogers v. Houston, 94 Tex. 403, 60 S. W. 869; Whitaker v. Farris, 45 Tex. Civ. App. 378, 101 S. W. 457; Bell Hardware Co. v. Riddle, 31 Tex. Civ. App. 411, 72 S. W. 613.

In the case of Barnett v. Squyres, supra, the Supreme Court said: "The decisions of this court have determined the rule to be otherwise, placing the burden upon the person asserting right under unrecorded instruments to show notice to the creditor prior to the acquisition of the lien."

In the case of Turner v. Cochran, Judge Williams, who rendered the Squyres decision, again speaking for the Supreme Court, said: "The decisions of this court have settled two propositions respecting the burden of proof in such cases: First. That a junior purchaser of land, attempting to defeat the title of the holder of a prior unrecorded deed from the same grantor for the same land, has the burden to show, by evidence outside the recitals in his conveyance, that he purchased for valuable consideration and without notice of the previous conveyance. Watkins v. Edwards, 23 Tex. 443; Hawley v. Bullock, 29 Tex. 217; Rogers v. Pettus, 80 Tex. 425, 15 S. W. 1093. Second. That, as against a creditor whose lien has been fixed upon land by legal process against his debtor, the holder of a prior unrecorded deed from such debtor has the burden of proving notice of his right to such creditor at the time of or before the attaching of the lien. Linn v. Le Compte, 47 Tex. 442; Wright v. Lassiter, 71 Tex. 644, 10 S. W. 295. These cases were followed in Barnett v. Squyres, 93 Tex. 193 [54 S. W. 241, 77 Am. St. Rep. 854]."

Under the authority of the Supreme Court, we now hold the burden was not on appellee to allege and prove want of notice to S. B. Harwell, but that burden was on appellant, and on that point the first and second assignments are overruled. We will, however, consider the general exceptions in the further discussion of the case.

We do not think admissible the ex parte affidavit of S. B. Harwell to the effect that his wife, N. A. Harwell, purchased the lots at the sale under the order of sale and paid for the same out of separate funds.

The testimony of S. B. Harwell, to the effect that he instituted suit and that an attachment issued and was levied on the lots, is not ordinarily admissible to prove the contents of attachments or judgments, but was doubtless admitted in this case only to identify the witness as the party named in the proceedings. In order to prove a lien by virtue of an attachment, the writ itself should be produced, but in this case the original attachment was lost, together with the return thereon, and hence secondary evidence was admissible.

R. E. Avent is the common source of title. On the 5th day of October, 1894, S. B. Harwell obtained judgment against R. E. Avent in the justice court, precinct No. 1, Cottle county, Tex., by default in the sum of $164.30, and reciting therein the foreclosure of an attachment lien which was levied on the lots in question with others on the 11th day of June, 1894. Plaintiff introduced in evidence certified copy of the attachment records of Cottle county, Tex., Book 1, p. 7, as follows: "S. B. Harwell against R. E. Avent, amount of debt, $164.33, justice court 1, Cottle county, June 9, 1894. Return of Officer: Came to hand on this the 11th day of June, A. D. 1894, and executed on this the 11th day of June, A. D. 1894, at 4 o'clock p. m., by levying upon and taking into my possession the property of the within-named defendant, R. E. Avent, all of the following described property, situated in the town of Paducah, county of Cottle, state of Texas." Then follows the description of lots.

Appellee next introduced a sheriff's deed to Mrs. N. A. Harwell, conveying the lots, reciting that the sum of $50 was bid on the same and paid to the sheriff by Mrs. N. A. Harwell, reciting that the sale...