Andrew A. Love v. John W. Berry, Adm'r and others, 22 Tex. 371

Bell, J. Andrew A. Love filed his petition in the court below, representing that, on the 11th day of August, A. D. 18-51, he had been induced to execute and deliver to one Lewis Godard, a transfer of his headright certificate for three hundred and twenty acres of land. He represented further, that on the same day, Godard executed and delivered to him an instrument of writing, acknowledging the receipt of the assignment or transfer of the land certificate, and stating that Godard was to locate the land certificate, for one third of the land, pay all expenses, &c.

The instrument further recited, that Godard was authorized to sell Love’s interest of two thirds in the land, for steamboat stock, if he could get two hundred dollars for it; and if he did not sell it, then Godard was to return to Love, Ms part of the land arising from the certificate. The petition stated the death of Godard, and the appointment of John W.

Berry, as his administrator; further, that Berry procured the patent for the land to be issued in the name of Godard, assignee of Love; and that Berry, after having received notice of Love’s rights, procured from the County Court an order for the sale of the land; that he sold it, and that Henry G. Brewer became the purchaser; and that Brewer subsequently sold half of the land to J. W. Ferris. The petition prays that the plaintiff’s right to two thirds of the land may be established by the decree of the court, &c.

The transfer of the certificate, made by Love to Godard, on the 11th of August, 1851, and Godard’s receipt for the same, of the same date, were recorded in Kaufman county j The land was located in Ellis county. The testimony shows that the plaintiff, Love, paid a portion of the expenses for surveying the land. Notice of the terms of the contract between Love and Godard, is brought home to Berry, the administrator, before the sale of the land was made. The testimony shows, that Brewer and Ferris paid the purchase money; but does not show, that either of them had any notice of Love’s rights, before they purchased.

The defendants tendered, in court, the amount of the expenses of surveying paid by Love. A jury was waived in the court below, and the cause submitted to the judge. Judgment was rendered, that the plaintiff take nothing by his suit, &c. We are of opinion, that there was no error in the judgment of the court below. The principle is well settled, that where one purchases from a party having the legal estate, without notice of the existence of any trust, such purchaser takes the estate, relieved of the trust. In the present case, Godard had the legal estate in the three hundred and twenty acres of land.

A purchaser from Godard, in his lifetime, without notice of the trust in favor of Love, would undoubtedly have taken the estate, free from the trust. Can a purchaser from Godard’s administrator, without notice of the trust, be affected by the equity in favor of Love ? We think not. It is true, that the doctrine of caveat emptor is said to apply to sales by administrators. But this doctrine can only apply so far as to affect a purchaser at an administrator’s sale, with notice of everything that he could have ascertained by the use of ordinary diligence.

If Godard’s receipt to Love for the land certificate, had been of record in the county of Ellis, where the land was located, then the purchaser, at the administrator’s sale, would have been affected with notice of Love’s equity, and the trust in favor of Love would have followed the land in the hands of the purchaser. It is true, that a purchaser at administrator’s sale, purchases at his own risk, and only takes such title as the estate has; but, he takes all the title the estate has.

In this case, the estate of Godard had a perfect legal title to the three hundred and twenty acres of land, by virtue of Love’s transfer of the certificate, and the issuance of the patent to Godard, as assignee. In the hands of Godard, and of his adminstrator, the trust in favor of Love attached to the legal estate ; but it only attached because of Godard’s knowledge of Love’s rights, and because the administrator, in contemplation of law, is affected by knowledge on the part of his intestate.

The purchaser at the administrator’s sale, had no knowledge or notice of Love’s rights; and the ' law, not permitting him to be affected by secret equities, of which he had no notice, it follows, that he took the legal title which was in the estate, free from the trust in favor of Love. We are therefore of opinion, that the judgment of the court below be affirmed. Judgment affirmed.