J. R. Allen v. E. H. Root et al., 39 Tex. 589

Walker, J. This is an action of trespass to try title to 640 acres of land, situated in Navarro county. The first assignment of error would be well taken if it were shown that the evidence of Croft, the attorney, related to a privileged communication. It is not merely the privilege of the attorney to withhold such communication, but, though he may be willing to give it in evidence, it is the right of the client to object for his own protection. But we do not think the testimony in this • case comes within the rule. The third assignment of error, is well taken.

Subsequent purchasers who claim as innocent purchasers must prove the payment "of the purchase money; but he who purchases with a notice of prior equities cannot claim to be an innocent purchaser, and proof of the payment of the purchase money will not help out such a title. A title bond duly recorded is notice to all subsequent purchasers. One who purchases land with notice of an outstanding equitable title is subject to have the legal title decreed against him. He takes the legal title as a trustee for the holder of the equitable title.

The court should have given charges ISTos. 2 and 3, as asked by plaintiff’s counsel, and it was error to refuse them. They appear to have been rejected by the court on the ground that they were not applicable to the case. We can scarcely conceive a case where these principles of law would be more directly applicable than in this case, where the suit is by a first purchaser against those claiming under a second purchaser. On page 76 of the Record there is an agreement by counsel that there is a regular chain of title from the government to E. H.

Root; and it is further agreed that the defendants hold under regular deeds from J. W. Abbey, to whom Root sold the land, after he had made bond for title to J. R. Allen, the plaintiff. But it is strongly urged that Allen is estopped from denying Abbey’s title, from the fact that the deed from Root to Abbey is in his handwriting, and is also witnessed by him.

These facts unexplained would certainly go far to operate an estoppel; but Root in his evidence testifies that he purchased the land from Oliver and Tynes with means belonging to Allen ; that he took the conveyance in his own name, supposing Allen would allow him to hold the land, but that Allen required him to give him a title bond: In addition to the fact that the bond was recorded, Root swears that he told Abbey that he had no title for the land, that he had sold it to Allen, and that Allen’s deed was on record at the time he delivered the deed.

He also swears that Abbey never paid him anything for the land.- But the most material part of Root’s evidence is, that Allen told him not to deliver the deed to Abbey until he was paid for it, and that he delivered the deed to Abbey on his promise that he would make it all right, without Allen’s knowledge and against his protestations; and he explains this by saying that Abbey was an old confidential friend or he would not have done so. Those who purchased from Abbey are alike with him affected by record notice of Allen’s equitable title.

But the three years statute of limitation is invoked in this case, and we are asked to overrule the case of Eliot v. Whitaker, 30 Texas, 412, which decides “that where a party purchased knowing that his grantor had previously sold the land, it is such a fraud as to destroy the conveyance as a muniment of title, under the 15th

Section of the act of limitation.” We think, however, that this case must receive the approbation of this court under

Article 4622 and the authorities cited in the note 1031. A party who buys a title that he knows his grantor has previously parted with, for the purpose of prescribing under the three years limitation act, is guilty of such a fraud as the Legislature never intended to protect. We do not hesitate in applying the doctrine of Watkins v. Edwards, 23 Texas, 445, and authorities there cited, to this case. The judgment of the District Court is reversed and the cause remanded. Reversed awd remawdbd..