Thomas v. Dashiell

• Decision Date: 20 December 1881
• Docket Number: Case No. 959.
• Citation: 55 Tex. 508
• Parties: GASTON & THOMAS v. W. B. DASHIELL.
• Court: Texas Supreme Court

55 Tex. 508

GASTON & THOMAS

v.W. B. DASHIELL.

Case No. 959.

Supreme Court of Texas.

Dec. 20, 1881.

APPEAL from Kaufman.Tried below before the Hon. Green J. Clark.

Gaston & Thomas brought trespass to try title to the land in controversy against W. B. Dashiell, who pleaded “not guilty.”

Nester Morrow became the guardian ad litem of Alfred H. and Ann R. Dashiell, minors, and as such intervened in the suit.

In the petition of intervention it was claimed that the mother of the minors had been the owner of the property in controversy; that by her last will she had devised it to them; that by the will their mother had made their father, W. B. Dashiell, the defendant, executor, with power at his discretion to sell for their benefit; that in fraud of the rights of the minors, the said executor had conveyed without consideration to J. A. Bennett; that Bennett without consideration had conveyed to W. B. Dashiell, individually; that W. B. Dashiell had, for his own benefit, borrowed money from the appellants, and conveyed in trust to them; that they, appellants, had notice of the vices in the antecedent conveyances; that they had foreclosed the trust deed, and at the sale became the purchasers through one F. H. Davenport; charging fraud, collusion and notice throughout, and praying for a cancellation of all the conveyances, for damages and for the removal of the executor.

By a supplemental petitionappellants pleaded the general issue and “not guilty” to the petition of intervention.

On the 10th day of April, 1876, the executor, by a deed reciting a consideration of $20,000, and purporting to be made by virtue of and for the purposes mentioned in the will, conveyed the land in controversy to J. A. Bennett; this said deed was, on the same day, acknowledged in Dallas, and was recorded in Kaufman county on April 12, 1876.The purpose of the executor in making the deed was to get the title in a shape to incumber it, and it was made without consideration.

On the 12th day of April, 1876, J. A. Bennett, by a deed reciting a cash consideration of $20,000, conveyed the land in controversy to W. B. Dashiell, warranting only against those claiming under him.It was proved that no consideration was in fact paid.That the deed was, on the day of its date, proven for record and recorded in Kaufman county.

On the 17th day of April, 1876, W. B. Dashiell borrowed from appellants $3,500, and secured the same by a mortgage (with power of sale) upon the land in controversy.The interest was paid upon the loan up to January, 1878.

On January 27, 1879, the appellants sold under the power contained in the mortgage, and through F. H. Davenport became the purchasers.On the same day appellants, as trustees, conveyed to F. H. Davenport by a deed recorded in Kaufman countyFebruary 1, 1879; Davenport, by special warranty deed recorded in Kaufman countyFebruary 1, 1879, reconveyed to the appellants.

Verdict and judgment for appellants against W. B. Dashiell; for the intervenors against appellants for the land and for damages, and a decree cancelling the conveyances as prayed in the petition of intervention; a verdict that W. B. Dashiell had violated his trust as executor, but no judgment or further act of the court upon that issue.

Eblen & Robertson, for appellants.

I.Registration notice is only of the existence and contents of the instrument recorded.Pasch.Dig., arts. 4988, 4994, 4983;McLouth v. Hurt, 51 Tex., 120;Cameron v. Romely, 3 Tex. L. J., 663.

II.The deeds from the executor to Bennett, and from Bennett to Dashiell, would be valid if their recitals, of which the appellants had constructive notice, had been true.The will of C. A. Dashiell gave the executor power to sell for certain purposes.The deed from the executor to Bennett recited a sale for those purposes for an adequate consideration.The deed from Bennett to Dashiell recites a subsequent sale for an adequate consideration.Stephens v. Beall, 22 Wall., 339;Cook v. Berlin Mill Co., “The Reporter,” vol. 6, No. 6, p. 188;Staples v. Staples, 24 Gratt., 235;Dervoise v. Sanford, 1 Hoff. Ch., 192;Perry on Trusts, sec. 602w;Johnson v. Richardson, 3 Tex. L. J., 515.

III.If the court believed that the deed from Bennett to Dashiell, considering its date, consideration and position upon the record, was sufficient evidence of fraud in the deed from the executor to Bennett, and based its charge upon this opinion, then the charge was erroneous as a charge upon the weight of evidence and based upon a mistake in the estimate of that evidence.McLouth v. Hurt, 51 Tex., 120;Wade on Notice, secs. 13, 40;Wilson v. Wall, 6 Wall., 91;Perry on Trusts, vol. 2, sec. 602 w.

IV.The deed from the executor to Bennett, and that from Bennett to Dashiell, bearing different dates and importing separate transactions, cannot be construed together as one instrument, as a matter of law.Dunlap v. Wright, 11 Tex., 602;Wallis v. Beauchamp, 15 Tex., 305;Perry on Trusts, vol. 2, sec. 602 w.

V.The legal effect of said two deeds is not a purchase by Dashiell from himself.By special charge No. 11, requested by appellants, the court was asked to charge the jury that appellants had constructive notice only of the contents and legal effect of said deeds, and that if they bore different dates they could not be construed together as one transaction as against appellants, unless they had notice of the fraud or want of consideration in said deeds; which the court refused to give.Dunlap v. Wright, 11 Tex., 602;Wallis v. Beauchamp, 15 Tex., 305;Perry on Trusts, vol. 2, sec. 602 w.

VI.Purchasers are only charged by construction with notice of the facts actually exhibited by the record, and not with such as might have been ascertained by such inquiries as an examination of the records might have induced a prudent man to make.The appellants had no actual knowledge of the contents of the deed from the executor to Bennett--none of the deed from Bennett to Dashiell; and knew nothing of the fraud or want of consideration in said deeds.Neither of said deeds on its face showed fraud or want of consideration.Both were on record at the date of appellants' purchase.The appellants in the third subdivision of special charge No. 1 requested the court to charge the jury that said two deeds on their faces were valid, and that no constructive notice of them would affect appellants with notice of the fraud or want of consideration in them; which was refused by the court.Taylor v. Harrison, 47 Tex., 457;McLouth v. Hurt, 51 Tex., 120;Chalk v. Watson, 11 Tex., 93;Wilson v. Wall, 6 Wall., 91;Perry on Trusts, vol. 2, sec. 602 w.

VII.If the appellants had notice of the trust incumbering the property, still, as the executor had by the will of C. A. Dashiell the power to mortgage, and the appellants had no notice of the executor's intent to misapply the money borrowed, they would be entitled to recover.Danish v. Disbrow, 51 Tex., 240;Baldridge v. Scott, 48 Tex., 138;Jordan v. Imthurn, 51 Tex., 287;Perry on Trusts, vol. 2, sec. 768;Jones on Mortgages, vol. 1, sec. 129.

Manion & Adams and Ferris & Rainey, for appellees.

I.The deeds from Dashiell, as executor, to Bennett, and from Bennett back to Dashiell, and the record thereof, show upon their face a sale by the executor, through Bennett, indirectly to himself, without any consideration having been in fact paid; and that the same was invalid as against the claim of the intervenor's wards.Pasch.Dig., vol. 2, art. 5640; 4 Kent, 438 (late edition, p. 475);Hamblin v. Yarneck, 31 Tex., 94;Merriman v. Russell, 39 Tex., 278;Davine v. Fanning, 2 Johns. Ch., 252;Baldridge v. Scott, 48 Tex., 191;Perry on Trusts, secs. 224, 830, 602k;Redfield on Wills, vol. 3, p. 534, and authorities cited.

II.The charge of the court was upon the construction of certain instruments of writing introduced in evidence, and that the proper registry thereof would affect the parties with constructive notice, and was not a charge upon the weight of evidence.Hamblin v. Yarneck, 31 Tex., 94;Briscoe v. Bronaugh, 1 Tex., 332;38 Tex., 532;Perry on Trusts, sec. 223.

III.Constructive notice is a legal presumption of notice arising not only from the records, but also from facts recited in the chain of title under which a party may claim title; also from the nature and character of the transaction itself, and also from all the facts and circumstances of the case from which the courts will presume that a purchaser had notice of the equities attached to an estate.Perry on Trusts, sec. 223;1 Tex., 332.

IV.The power to sell granted by the will to the executor, W. B. Dashiell, could not be delegated by him to a third person, and the sale by Gaston & Thomas, under the mortgage, was without the authority of law, and null and void.4 Johns. Ch., 369; Redfield on Wills, vol. 3, pp. 237 and 549, subd. 4;Perry on Trusts, sec. 779;Story on Agency, p. 15, sec. 13.

V.The act of W. B. Dashiell, as executor, in conveying said real estate to said Bennett, and the act of said Bennett in conveying the same back to said Dashiell individually, no consideration in either case having been in fact paid, did not divest the said children of their title to the same; but the trust re-attached, and said Dashiell held the same as before, in trust for the purposes named in the will.Merriman v. Russell et al., 39 Tex., 278;Perry on Trusts, secs. 222, 830;Redfield on Wills, vol. 3, p. 534;4 Kent, p. 438;Perry on Trusts, sec. 224.

VI.The appellants, Gaston & Thomas, were affected with constructive notice of the trust, and of the violation thereof by the executor, W. B. Dashiell, in procuring a conveyance to himself individually of the said premises (being the principal estate belonging to said minors), in order to mortgage the same for a loan of money for his own use, and are not authorized in law or equity to recover the same as innocent purchasers.Mullins v. Wimberly, 50 Tex., 457;Perry on Trusts, sec....