Simpson v. Chapman

• Decision Date: 01 January 1876
• Parties: B. D. SIMPSON v. A. A. CHAPMAN ET AL.
• Court: Texas Supreme Court

45 Tex. 560

B. D. SIMPSON

v.A. A. CHAPMAN ET AL.

Supreme Court of Texas.

1876.

APPEAL from Hood. Tried below before the Hon. Charles Soward.

A. J. Hood, for appellant, cited Dunlap v. Wright, 11 Tex., 597;28 Tex., 553;Ayres v. Duprey, 27 Tex., 606; 1 Story's Eq. Jur., 445, secs. 72, 75; Hilliard on Ven., 1, 2, 3, notes 10, 187, 199, 243, 244, 314; Hamilton v. Avery, 20 Tex., 635;Love v. Berry, 22 Tex., 377; 2 Story's Eq., 641, 959; Caldwell v. Fraim, 32 Tex., 327;Daniel v. Hill, 23 Tex., 571;Bateman v. Bateman, 16 Tex., 545;Glasscock v. Nelson, 26 Tex., 154; 2 Parsons on Cont., 660; Evans v. Hardeman, 15 Tex., 480;Robinson v. Varnell, 16 Tex., 390;Yeary v. Cummins, 28 Tex., 91;Smith v. Hampton, 13 Tex., 463.

Ball & Roach, and B. F. Williams and Samuel H. Renick each filed briefs for appellee.

MOORE, ASSOCIATE JUSTICE.

This is an action of trespass to try title to twelve hundred and eighty acres of land, located and surveyed December 2, 1851, by virtue of a certificate issued October 5, 1847, by the County Court of Guadalupe county, to French Smith.

Appellant Simpson, who was the plaintiff in the court below, claimed title by deed from the sheriff of Hood county, as purchaser, at a sale by said sheriff under an execution issued on a judgment in favor of the county of Gonzales against said Smith and others. This judgment, which was for the sum of two thousand dollars, was rendered in the District Court of Gonzales county on the 16th of April, 1867, execution having been first issued to Gonzales county. “No property found,” an alias execution was issued to the county of Hood, which, on the 3d of August, 1870, was levied upon the land in controversy, which, however, was returned without a sale, “because,” as the return of the sheriff states, “no legal newspaper was appointed in the thirteenth judicial district in which to advertise said land.” On the 25th of November, 1870, execution again issued, which was returned by the sheriff on the day he received it; that it “came to hand too late for sale.” February 21, 1871, another execution issued; and under this last execution the land was regularly advertised, and sold, April 4, 1871, to appellant for the sum of three hundred and five dollars. Immediately after his purchase, appellant placed the deed executed to him by the sheriff on record, and on the 24th of April, 1871, he procured from the General Land Office the patent for the land, which, however, was issued to “French Smith, his heirs and assigns,” by virtue of said location and survey in 1851, as aforesaid.

Appellee Chapman, in support of his claim to the land, relied upon a deed executed to him by said Smith on the 12th day of June, 1871, in pursuance of a contract or agreement made in January, 1853, of which the following is a copy:

“Whereas I have had located, through the agency of R. H. Wynn or William Mitchell, a certificate, No. 117, for one third of a league of land, which certificate was granted to Freeman H. K. Day, deceased; and also my headright certificate for twelve hundred and eighty acres--the two making two thousand seven hundred and fifty-six acres. Now, I do hereby agree and bind myself to have said certificates patented to Augustus A. Chapman, of the county of Monroe, State of Virginia, for his, the said Chapman's, own proper use; or, if I do not have said certificate patented to said Chapman in his own name, I do hereby agree and bind myself to have conveyed to said Chapman, in fee simple, the land patented upon said certificates, and, at least, I am to have the title to said land aforesaid fully and completely vested in said Chapman without any expense or charge upon him, said Chapman, which is for and in consideration of the judgment which was obtained by John S. Watson, of Virginia, in the Circuit Court of Giles county, Virginia, against French C. Smith & Co., and which judgment was paid by the said Augustus A. Chapman; and the conveyance of the land aforesaid to said Chapman is to be in full discharge of the sum paid by him in discharge of said judgment.

Given under my hand and seal this 22d day of January, 1853.

FRENCH SMITH, [L. S.]

Witness:

MICHAEL ERSKINE.

JOHN P. ERSKINE.

I do hereby agree to release all claims to said Smith for said sums by me paid in discharge of said judgment aforesaid, when the said Smith shall have complied with the above agreement.

AUGUSTUS A. CHAPMAN.

The above obligation, when complied with, will also be in full consideration of a bond executed to me some years since for two thousand acres of land lying on York creek, in the county of Guadalupe.

A. A. CHAPMAN.”

This agreement was not recorded until the 12th of June, 1871, when it, together with the deed from Smith to Chapman, mentioned above, was acknowledged by Smith before the clerk of the District Court of Hood county, and filed with him for record, which, as has been seen, was after the purchase of the land by appellant at the sheriff's sale. There was, however, testimony tending to prove, that a tenant of Chapman was in possession of a part of the land at the date of the sale, and also of other facts and circumstances, from which it is insisted the jury may have inferred that appellant had notice of Chapman's title when he bought. The jury, therefore, under the instructions of the court, were warranted in finding that he was not an innocent purchaser. But, as there is no pretense that Chapman had possession of the land, or that the creditor had any notice, either actual or constructive, of his claim to it when the execution was levied and his lien secured, if...