B. W. Mullins, Guardian, &c., v. W. S. Wimberly, 50 Tex. 457

Moore, Chief Justice. That there was a mistake in the deed from Bichólas L. to Warren Williams is beyond dispute. And if appellee is chargeable with actual or constructive notice of this mistake when he took from Warren Williams the deed of trust through which he derives the title upon which he brings this action, it cannot be denied that the judgment against appellant must be reversed. It is not pretended that the mistake in the deed had been in any way corrected prior to that time, or that notice of it could have been obtained by examining the records.

On the contrary, the registration of the deed from Bichólas L. Williams, if it had been his only source of information, only served to mislead and deceive appellant, if he had examined it. Bor can it be claimed that there is anything whatever in the transcript to induce the belief that appellee knew of the mistake in the deed when he loaned the money to Warren Williams, to secure the repayment of which the trust deed was given. On the contrary, he unquestionably, in fact, knew nothing whatever about it.

If, then, he is chargeable with notice, it is because the law imputes to him knowledge of facts from which, with proper diligence, he might have informed himself of the mistake. Unquestionably, if such is the case, he must be held to be affected with notice of the mistake, although he acted in the utmost good faith and had not in truth the least suspicion of it. Does it, then, appear from the evidence in the record that appellant is chargeable with the knowledge of facts from which, by proper investigation, he would have learned of the mistake in the deed to Warren Williams ? It is not denied that Nicholas L.

Williams was in the actual occupancy and possession of the land described in his deed to Warren Williams, holding and claiming it in his own right from the date of his deed to Warren to his death; that after his death Warren, as administrator pro torn., took possession of and inventoried it as property of his estate, and that the land was in the actual occupancy of appellant as the regular administrator of the estate of Nicholas L. Williams, or as the guardian of his children, or that of tenants holding for or in his right at the date of the trust deed from Warren Williams to appellee.

It is certainly a reasonable inference, as well as a well-recognized principle of law, that parties purchasing or loaning money on land are presumed to take sufficient interest to inform themselves, to some extent at least, in regard to its condition and situation, and whether it is occupied or unoccupied; and it has long been settled by this court that purchasers are chargeable with notice of the title or claim under which it is held or claimed by the tenant or occupant in possession when they buy. (Watkins v.

Edwards, 23 Tex., 443.) “ It is not to be presumed,” says the court, quoting from, the case of Pritchard v. Brown, 4 N. H., 397, a that any man. who wishes to purchase land honestly will buy without knowing what are the claims of a person in open possession of it.” It certainly cannot be denied that the language of the court in this case is sufficiently broad, if subject to no qualification or exception, to embrace and control this ease. It is insisted, however, by appellee’s counsel, that, as no more was called for by the facts, the court intended to announce, by its opinion in the case of Watkins v.

Edwards, merely a general rule, to which there are, as they say, exceptions as well established as the rule itself,—one of which, it is insisted, is, that when the vendor remains in possession, a purchaser from his vendee is not chargeable by reason of such possession with notice of a title or claim by the vendor adverse to or in conflict with his deed; but the purchaser is authorized to presume that the vendor holds in subordination to the title of his vendee. In support of this proposition we are referred to the cases of Newhall v. Pierce, 5 Pick., 450; Wood v. Farmere, 7 Watts, 382; Scott v.

Gallagher, 14 S. & R., 333. In the first of these cases it is held that notice to creditors of the existence of a bond from the grantee to reconvey, on the payment of a sum of money within a given time, is not to be inferred from the facts of the grantor continuing in possession after the deed given by him had been recorded. The court, however, put their decision upon the express requirement of the registration statutes.

The second case holds “that a purchaser of land is not affected with constructive notice of anything which does not lie within the course of his title, or is not connected with it; he is not, therefore, presumed to know of the registry of a will containing a devise of land which he claims by title paramount;”—and that while possession of the land is notice of the possessor’s title, the registry by him of a particular title will restrict the generality of the notice from possession. We fail to see the applicability of the points ruled in these cases to the proposition in support of which they are cited.

But the case of Scott v. Gallagher, it must be admitted, seems apparently more nearly in point. The court there says: “The bom-jidc purchaser of the legal title is not affected by a secret trust, of which he has not direct, express, and positive notice.

The possession of a cestui qui trust, and the exercise by him of every act of ownership, is not such notice.” The decision seems to be based upon the ground that it is not the duty of the purchaser from a party holding the legal title to call upon the person in possession of the land to inquire whether he has a secret agreement with the owner of the legal title; but if there is such an “ agreement it is the duty of the tenant in possession to spread it upon the records, of the county.” This reasoning of the court, it might be held, warrants the conclusion that the rule announced was only regarded as applicable where the tenant in possession holds by title which might and should be spread upon record.

And so it seems to have been directly ruled by the same learned court in which this case was decided in the subsequent case of Randall v. Silverthorn, 4 Barr, 173. And if it is admitted to be a general rule that the possession of the tenant affects the purchaser with notice of his title, we think the exceptions to it, on sound principles, must be limited to cases ‘where the tenant is knowingly in default in putting this title upon record, or has voluntarily given, to some extent, assistance in misleading the purchaser. Certainly such was not the case here.

The legal title was in Wai’ren Williams solely by accident and mistake, of which all parties were in total ignorance until after appellee had loaned Ms money and taken the trust deed. The title of appellant, therefore, could not have been spread upon the record; and we are clearly of the opinion that the exceptions to the rule recognized in Watkins v. Edwards—if, indeed, there are exceptions to it—do not apply to such cases as this. It may be well questioned, however, whether there is any such exception to the general rule in this State as that insisted on by appellee. (Mann v. Falcon, 25 Tex., 271; Hood v.

Fahnestock, 1 Barr, 470; Grimstone v. Carter, 3 Paige, 421; Russell v. Sweezey, 22 Mich., 235.) Appellee being chargeable with notice of appellant’s title, if he had made inquiry could not have failed to learn that there was a mistake in the deed from Fichólas L. Williams to Warren Williams, and that the land really intended to be conveyed by this deed lay on the east instead of the west side of Copperas branch.

Being chargeable with notice of this fact, he got by the deed of trust no greater or better title than Warren Williams, who, on the facts exhibited in the record, certainly could not, at the date of the trust deed, have maintained an action against his brother’s estate and recovered from it this land. There is another view of the ease which would lead to the same conclusion. Appellee did not, in fact, loan his money because he supposed he was getting security on the land described in the deed.

His own testimony shows that the tract of land to which the parties referred when the loan was being negotiated was land belonging to Warren Williams, and upon which he had lived. The loan was agreed upon before any reference was made to the deed. It was not referred to that appellee might be better informed as to the property proposed as security for the loan, for he was fully satisfied as to this, but merely for the purpose of getting, as the parties supposed, the correct description of Warren Williams’ land, upon which the money was loaned.

There was, therefore, the same mistake in the trust deed as in the deed from Bichólas L. to Warren Williams. The trust deed, through mistake, did not set forth the contract actually made by the parties to it. The court, by its decree foreclosing the deed as written, executed an agreement to which neither of the parties ever assented, and one, indeed, which had never been contemplated by either of them.

When appellee discovered the mistake in the deeds, he should have brought suit, citing all the parties interested, for the correction of the mistake and enforcement of the lien against the land upon which it was supposed by the parties that it had been given. The judgment is reversed and the cause remanded. Reversed and remanded. [Justice Bonner did not sit in this case.]