LEONARD v. BENFORD LUMBER CO. et al., 216 S.W. 382

GREENWOOD, J. This was an action of trespass to try title, brought by plaintiff in error, R. L. Leonard, against defendants in error, Benford Lumber Company et al. The land in controversy was 221 acres in Trinity county, which was originally located, on May 6, 1860, by virtue of a donation certificate-issued to Lewis Cox. By a decree of partition of the district court of Walker county, between the heirs to the estate of Lewis Cox, in 1856, the certificate was allotted to Minerva I. Roe. On July 15, 1857, Minerva I. Roe and husband conveyed to James C.

Dunlap the donation certificate; it being shown on the face of the conveyance that the certificate was a part of the distributive share of the estate of Lewis Cox, which had been assigned, by commissioners, in partition, to Minerva I. Roe as one of the heirs to the estate, as appeared on the records of the district court of Walker county. On March 17, 1860, James O. Dunlap conveyed the certificate to William R. Leonard, and, after the death of William R. Leonard, his heirs conveyed the land in controversy to plaintiff in error, R. L. Leonard. The conveyances from Minerva I. Roe and husband to James C.

Dunlap, and from James C. Dunlap to William R. Leonard, were duly acknowledged and were recorded, on May 7, 1860, in Trinity county. The records of Trinity county having been burned in 1872, these conveyances were again recorded, in 1874, in Trinity county. In 1875, that portion of Trinity county which included the land in controversy was detached from Trinity county and made a part of Polk county. On April 15, 1908, the state of Texas patented the 221 acres of land to the heirs of Lewis Cox, their heirs or assigns. On July 13, 1908, all the heirs of Lewis Cox, including the descendants of Minerva I.

Roe, then deceased, conveyed the 221 acres to the Davidson-Ingrain^ Lumber Company, Incorporated, whose name was afterwards changed to Benford Lumber Company. The conveyance to defendant in error, by its former corporate name, was by general warranty deed, for a consideration of $1326 in cash, which was paid by defendant in error, in good faith, without actual knowledge of any defect in the title which it acquired under said conveyance.

Unless the Benford Lumber Company was an innocent purchaser, it is apparent from the above statement that plaintiff in error is the owner of the superior title to the land in controversy. The acquisition by Minerva I.

Roe, in 1856, of the entire certificate, in the partition or the estate of Lewis Cox, is shown in her recorded conveyance to James O. (Dunlap; but it is denied that defendant in error should be charged with notice of the contents of this conveyance for three reasons: First, that the conveyance was of a personal chattel and hence its registration was unauthorized; second, that the title acquired by defendant in error had its origin in the patent and defendant in error was not required to take notice of defects, though disclosed by the records, back of the patent; third, that constructive notice is confined to one’s chain of title, and the conveyance by Minerva I.

Roe is not a link in defendant in error’s chain of title, or at least is not a link in said chain of title, save with relation to the interest in the land, which Minerva I. Roe acquired by inheritance from Lewis Cox, without aid from the partition. Notwithstanding the certificate was conveyed when it was personalty, yet the conveyance concerned land after the location of the certificate in Trinity county; for the legal effect of the conveyance of the certificate was to invest the purchaser with a title to the land, when located, and to make the patent, when issued, inure to the purchaser’s benefit.

Merriweather v. Kennard, 41 Tex. 281; Humphreys v. Edwards, 89 Tex. 516, 519, 36 S. W. 333, 434; Cagle v. Timber & Lumber Co., 202 S. W. 942. The transfer of the land certificate came within Lord Cairn’s definition of a “conveyánce,” when he stated: “There is no magical meaning in the word ‘conveyance’; it denotes an instrument which carries from one person to another an interest in land.” Credland v. Potter, L. R. 10 Ch. 8, 12. However, our statute not only authorized the record of conveyances but of all other instruments concerning land.

Article 6823, R. S. This court said, per Justice Gaines, in Shifflet v. Morelle, 68 Tex. 390, 4 S. W. 846: “When the location is made, antecedent transfers of the certificate, or of the right, being evidence of title to the specific land located, may be lawfully registered in the county where the property is situated.” The same construction is given the statute in Lewis v. Johnson, 68 Tex. 450, 4 S. W. 644, Tevis v. Collier, 84 Tex. 641, 642, 19 S. W. 801, Ranney v. Hogan, 1 Posey, Unrep. Cas. 257, Peterson v. Lowry, 48 Tex. 411, and West v. Loeb, 16 Tex. Civ. App. 402, 403, 42 S. W. 612.

To hold that a transfer of a land certificate could not be lawfully recorded in the county wherein it was subsequently located would be inconsistent with' the often repeated declaration that the policy of our registration laws requires that our public records disclose all matters affecting our land titles. Henderson v. Pilgrim, 22 Tex. 476; Moran v. Wheeler, 87 Tex. 184. 27 S. W. 54.

It cannot be said that patentees, or their assignees, may ignore an instrument, when duly recorded, by reason of their connection with the patent,' when the instrument has the legal effect to determine, in whole or in part, to whose benefit the patent itself inures. It was held in Robertson v. Du Bose, 76 Tex. 12, 13 S.

W. 300, that an agreement that a patent to Caleb Holloway was common source of title did not prevent a party to the agreement from proving a conveyance, before patent, from Caleb Holloway, grantee of the certificate on which the patent issued, and a chain of title to the party from the vendee in such conveyance; because the proof merely showed who really owned the land under the patent. There is no conflict between our holding and Breen v. Morehead, 104 Tex. 254, 136 S. W. 1047, Ann. Cas. 1914A, 1285, or Wimberly v. Pabst, 55 Tex. 587, relied on by defendant in error. Breen v.

Morehead determined that a purchaser need not look beyond the origin of the title’ under which he purchased, which was held to be the date of the application to buy the land from the state. 104 Tex. 257, 258, 136 S. W. 1047, Ann. Cas. 1914A, 1285. But the title to the 221 acres in controversy originated in the donation certificate, which eñ-titled Lewis Cox, his heirs and assigns, to 640 acres of land, by reason of the participation of Lewis Cox in the battle of San Jacinto. Manchaca v. Field, 62 Tex. 135; Welder v. Lambert, 91 Tex. 520, 44 S. W. 281; Creamer v. Briscoe, 101 Tex. 493, 109 S. W. 911, 17 L. R.

A. (N. S.) 154,, 130 Am. St. Rep. 869; McClintic v. Dry Goods Co., 106 Tex. 36, 154 S. W. 1157. The ease of Dickerson v. Bridges, 147 Mo. 235, 48 S. W. 827, involved a conflict between claimants of rights acquired under a homesteader, to whom land was subsequently patented. One claimant held a recorded deed of trust, given before patent but after the homesteader’s entry on the land, on which the patent issued. The other held a deed of trust given after the patent.

Notwithstanding the elder deed of trust antedated the patent, in speaking of the subsequent lien-holder’s duty, the court said: “His inquiry for incumbrances should not have stopped with' the date of the patent or its registry, but obviously it should have been carried back to the date of the original entry by the homesteader, as that marks the date and source of the title indicated by the patent.” 147 Mo. 245, 48 S. W. 827. The opinion in Wimberly v.

Pabst, 55 Tex. 592, recognizes that actual or constructive notice of defects in the title to a land certificate of one to whom patent subsequently issued, on the certificate, would prevent a purchaser under the patentee from being protected as a bona fide purchaser; for the court says: “When, therefore, a subsequent purchase is made upon the faith of a patent, regular upon its face, public policy requires that it should constitute an important element in the question of the good faith of the transaction, and should turn the scale in its favor, except in cases of actual notice, or when the law would impute constructive notice of some defect sufficient to defeat it.”

Article 6842, R. S., provides that the record, in the proper county of an instrument of writing, duly proven or acknowledged, shall be taken and held as notice to all persons of its existence.

Article 6857, R. S., declares that where an instrument in writing has been duly registered in the proper county, and the property conveyed by it after-wards falls within another county, such registration shall continue to be equivalent to actual notice of its contents to all persons whomsoever.

Article 6824, R. S., declares that all conveyances of land shall be void as to all creditors and subsequent purchasers, for valuable consideration, without notice, unless acknowledged or proved and filed for, record as required by law. The above articles were in effect when the lumber company purchased the land in controversy; and the registration in Trinity county of the conveyances by and under Minerva I. Roe, through which plaintiff in error, Leonard, deraigns his title, was just as effective as though such conveyances had been of record in Polk county at the date of the Lumber Company’s purchase. Lumpkin v.

Muncey, 66 Tex. 311, 17 S. W. 732. The literal terms of articles 6842 and 6857 would require that all persons be held to know what appears on the face of a duly recorded instrument. However, our statutes bear a settled construction, under which registration of an instrument carries notice of its contents only to those bound to search for it, among whom are subsequent purchasers under the grantor in the recorded instrument. Thus it is declared in Houston Oil Co. of Texas v. Kimball, 103 Tex. 108, 122 S.

W. 540, that “a purchaser is required to look only for conveyances made, prior to his purchase by his immediate vendor, or by a remote vendor through whom he derives his title,” citing White v. McGregor, 92 Tex. 558, 50 S. W. 565, 71 Am. St. Rep. 875, wherein the court quote with approval the 'following language in Stuyvesant v. Hall, 2 Barb. Ch. 151, viz.: “The recording of a deed ‘or mortgage, therefore, is constructive notiew only to th.ise who have subsequently acquired some interest in or right in the property under the grantor or mortgagor.” To the same effect are Carlisle & Co. v.

King, 103 Tex. 624, 626, 133 S. W. 241, Jenkins v. Adams, 71 Tex. 5, 8 S. W. 603, Taylor v. Harrison, 47 Tex. 456, 457, 26 Am. Rep. 304, Throckmorton v. Price, 28 Tex. 609, 91 Am. Dec. 334, and Carnes v. Swift, 50 S. W. 87. The opinion of Chief Justice Stay ton in King v. Haley, 75 Tex. 170, 12 S. W. 1112, is decisive that whether the Benford Lumber Company be treated as a purchaser of the 221 acres of land, or of an undivided interest therein, from the heirs of Minerva I. Roe, it was a subsequent purchaser, charged with the duty to search for a prior recorded deed from Minerva I.

Roe, and hence affected with notice thereof. Such notice extended to ail that was actually exhibited on the face, of the prior recorded deed. Wiseman v. Watcers, 107 Tex. 96, 174 S. W. 816. Enough was exhibited there to show that Minerva I. Roe had acquired full title to the certificate and had conveyed such title to Dunlap.

It seems to us that when it is determined that the law imposed on the Lumber Company the duty to investigate the records, for a certain registered instrument, there can be no doubt that its defense of innocent purchaser failed, in so far as such defense rested on lack of knowledge of facts apparent on tlie face of the registered instrument; for the very purpose of the registration statutes forbids the holding that one be treated as innocent of the contents of a record, made for his benefit and open to his examination. Kennard v. Mabry, 78 Tex. 156, 14 S. W. 272.

As said by the Supreme Court of the United States in Neslin v. Wells, 104 U. S. 433, 26 L. Ed. 802: “The provisions of the law in reference to these records either have no purpose at all— which we have no right to assume—or their purpose was that the public might have knowledge of the titles to real estate of which they are the registers.

It would utterly defeat that purpose not to presume with conclusive force that the notice which it was their office to communicate had reached the party interested to receive it; for, if every man was at liberty to say he had failed to acquire the knowledge it was important for him to have, because he had not taken the trouble to search the record which the law had provided for the express purpose of giving it to him, then the ignorance which it was the public interest and policy to prevent would become universal, and the law would fail because it refused to make itself respected.” Because it was the duty of the Lumber Company to have acquainted itself with the contents of the conveyance of Minerva I.

Roe, as it appeared upon the records of Trinity coun* ty, it was legally chargeable with notice of such contents and hence the defense of innocent purchaser failed. It is therefore ordered that the judgments of the district court and of the Court of Civil Appeals be reversed, and that judgment be here rendered for plaintiff in error for the 221 acres Qf land in controversy. @=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes