C. B. Haines et al. v. Claude West et al., 101 Tex. 226

Me. Justice Brown delivered the opinion of the court. The land in controversy was situated in Jefferson County, Texas, until 1858, when the legislature created Hardin County embracing a portion of Jefferson. The dividing line between the two counties passed through the survey in controversy, which consisted of 1,500 acres of land that had been granted to T. D. Yoakum, under whom all the parties claim title. It is unnecessary for us to set out the facts in detail. The following statement will be sufficient for a decision of the questions which we regard as material.

In. the year 1870 a suit was pending in the District Court of Jefferson County by Ralph West, administrator of Richard West, deceased, against Anna Chesher. Sidney Cole, Evaline Cotton and Caroline Haines, under the name of Caroline Henderson, made themselves parties defendant, alleging that Anna Chesher was their tenant and that the land belonged to them as the children of said Yoakum.

In 1870 the court entered judgment in that case against Anna Chesher and the other defendants, Sidney Cole, Evaline Cotton and Caroline Henderson, married women, whose husbands were not joined, which judgment was duly recorded in Jefferson County in 1877. In 1897 Ollie Rowe bought that part of the land which lies in Hardin County by deed from the said Sidney Cole, Evaline Cotton and Caroline Haynes, joined by. their husbands.

On the 22d day of December, 1904, two suits were pending in the District Court of Jefferson County involving the lands in controversy; they were consolidated and an amended petition filed in which the said Sidney Cole, Evaline Cotton and Caroline Haines, joined by their husbands", and Ollie Bowe, were made parties plaintiff against Claude West and others, the claimants of the land under the former judgment. The latter case was tried before the judge without a jury who filed findings of fact, from which our statement is made, and gave judgment for the defendants, which was affirmed by the Court of Civil Appeals.

We find it unnecessary to discuss the different assignments of error presented by the plaintiffs in error to this court, but shall confine ourselves to those which we regard as necessary to be determined. It is claimed that the undisputed evidence shows that Mrs. Caroline Haines was insane at the time that the judgment of 1870 was rendered in the District Court of Jefferson County and that the trial court in this case erred in finding that she was at that - time sane.

The error is immaterial because if she was- insane the judgment was not void and would bind her in this suit. (Freeman on Judgments, sec. 152; Ewing v. Wilson, 63 Texas, 88.) On behalf of Mrs. Haines and Ollie Rowe it is objected that Mrs. Haines was not a party to the suit in which the judgment of 1870 was entered. It is sufficient answer to say that- she voluntarily made herself a party to the suit undér the name of Caroline Henderson and was in fact a real party to the suit. Parol evidence was admissible to identify her as a party to the action. (Freeman on Judgments, sec. 175; Tarleton v.

Johnson, 25 Ala., 300, 60 Am. Dec., 515; Shirley v. Fearne, 33 Miss., 653, 69 Am. Dec., 375.) Ollie Rowe claims to be an innocent purchaser in good faith for valuable consideration from Caroline Haines. This presents the only substantial question in this case. The judgment of 1870 divested Caroline Haines of all title to the land, therefore she had nothing to convey to Ollie Bowe and if he is entitled to any protection as an innocent purchaser it must arise under the statutes of our State concerning registration.

Article 4649, Revised Statutes, reads as follows: “Every partition of any tract of land or lot, made under any order or decree of any court, and every judgment or decree by which the title of any tract of land or lot is recovered shall be duly recorded in the cleric’s office of the county in which such tract of land or lot or part thereof may lie, and until so recorded, such partition, judgment or decree shall not be received in evidence in support of any right claimed by virtue thereof.” The judgment in this case was recorded in Jefferson County before Ollie Rowe became a purchaser.

It was held in the case of Thornton v. Murray (50 Texas, 161), and Russell v. Farquhar, (55 Texas, 355), that this statute was passed for the purpose of protecting purchasers in good faith. It will be observed that this

article does not declare all unrecorded judgments to be void as to subsequent purchasers in good faith without' notice as in case of unrecorded deeds, but provides that such unrecorded judgments shall not be admissible in evidence against innocent purchasers in good faith. The judgment in this case having been recorded and being admissible in evidence, fully complies with the statutory requirement and the court can not interpolate into that statute any conditions which were not therein expressed whereby the innocent purchaser would be protected.

It was the policy of the Legislature to provide for the protection of the innocent purchaser by permitting him to have the decree excluded upon a trial of the right to the property, which would be as effective as the .provisions of the

article with regard to deeds, if the instrument was not recorded as required by law. Mrs. Haines having no title to convey to Ollie Rowe, he, not coming within any provision of the statute by which he would receive protection against the judgment, can not be accorded the protection as an innocent purchaser under

Article 4640, which applies specifically to unrecorded deeds, therefore the question whether the language of the judgment would give him notice that Mrs. Haines was a party to that judgment is immaterial—he stands or falls on Mrs. Haines’ title. It is ordered that the judgment of the Court of Civil Appeals be affirmed. Affirmed.