P. P. R. Collum et al. v. Sanger Brothers, 98 Tex. 162

GAINES, Chief Justice. The plaintiffs in error brought this suit to recover of defendants in error, P. P. R. Collum, his wife Elizabeth Collum, and W. M. Williams, an undivided one-fifth interest in a tract of land consisting of 160 acres patented to Harsiss Cates. The petition admitted that defendants Collum' and wife owned an undivided two-fifths interest in the land, and that Williams owned also a two-fifths undivided interest. Collum and wife in their answer claimed title to three-fifths of the land. Williams did not answer.

There was a judgment for the defendants in the District Court which, on appeal to the Court of Civil Appeals, was reversed and judgment rendered in favor of Sanger Brothers for the one-fifth interest as prayed for in their petition. ¡Narsiss Cates, the patentee, died in the year 1893, leaving as her only heirs C. D. Cates, R. G. Cates, D. C. Cates, Mont Cates and the appellee Mrs. Collum. Two years after her death, C. D. Cates and D. C. Cates sold their respective interests in the land to Mrs. Collum and executed to her a deed of general warranty, which was not recorded. ¡Not long after the decease of Mrs.

Cates, Mont Cates sold his one-fifth interest to R. C. Cates; and thereafter R. C. Cates and Mrs. Collum made a verbal partition of the land setting apart to the former two-fifths of the tract and to the latter three-fifths. The division line so agreed upon was marked by stone monuments and soon thereafter a fence was constructed upon it by the parties to the partition. From that time up to- the time of the trial, Mrs. Collum had held possession of the part of the land so set apart to her through her tenants. R. C.

Cates also took possession of the part set apart to him and he and his vendees have had possession ever since. In the year 1900 the defendants in error obtained a judgment against C. G-. Cates, one of Mrs. Collum’s grantors, and caused an abstract thereof to be filed and recorded in the office of the county clerk of Wise County. They also caused execution to issue so as to preserve any lien that may have been created by the filing and recording of such abstract. On the 6th of December, 1902, execution was issued on said judgment and was levied upon C. G. Cates’ interest in the land in controversy.

The land was sold under the execution and defendants in error became the purchasers. The sole question in the case is: Was the possession of the land by Mrs. Collum through her tenants notice to the defendants in error of her title through C. G. Cates? The trial court held that it was; but the Court of Civil Appeals ruled that' it was not, and for that reason-reversed and rendered the judgment. We are of the opinion that the trial court ruled correctly upon the point. That possesion by a tenant is equivalent to the possession of his landlord as to the question of notice, is the settled law of this court.

Watkins v. Edwards, 23 Texas, 448; Hawley v. Bullock, 29 Texas, 222; Mainwarring v. Templeman, 51 Texas, 205. The question then resolves itself into the further inquiry: Does the fact that the possession held by the party claiming the land is consistent with the recorded title relieve the purchaser or creditor of the duty of making inquiry of such possessor?

There is much authority in favor of the affirmative of this question; and the Supreme Court of Iowa, following.the doctrine of those courts which hold that possession under such circumstances is not notice, ruled that the possession of one tenant in common is not notice of a title acquired from a cotenant, the conveyance not being recorded. May v. Sturdivant, 75 Iowa, 116. But this court has made a contrary ruling. Wimberly v. Bailey, 58 Texas, 222. In the case just cited Mrs. Bailey, as executrix of the will of her deceased husband, had, as she was empowered to do, settled with W. D.

Bailey, one of the devisees under the will. He with his brothers and sisters, who were also devisees under the will, were entitled to the estate of the testator after the determination of the life estate of the executrix, their mother. He received of her a sum of money in payment for his interest under the will and also for his interest in her estate as a prospective heir; the latter in the nature of an advancement. If any instrument evidencing the transaction was executed, it was not recorded. Mrs.

Bailey was in possession of the property until her death, and two of her heirs, who were also devisees under her husband’s will, immediately occupied the property and continued to hold possession until the time of the trial. Four days after Mrs. Bailey’s death, Wimberly, having obtained a judgment against W. D. Bailey, caused an abstract of the judgment to be recorded and a sale to be made of the land under execution, at which he became the purchaser.

It was held that he acquired no title to the land, for the reason that the possession by the heirs was notice to him that the defendant in the judgment had parted with his interest therein. In the recent case, Ramirez v. Smith, 94 Texas, 184, it was expressly stated as a general rule that the fact that the possession of oile holding land, is consistent with the recorded title, does not exempt a purchaser from the duty of inquiring of him as to any other title.

We think it a safe and salutary rule to require of a prospective purchaser of land to ascertain whether any other be in occupancy of it; and if there be such possession, to go to the possessor and asceifein the nature and extent of his claim. Possession is evidence of title, and it seems to us that common prudence and common-honesty demand this course. If so the possession should be notice to him, and if notice to a purchaser it is notice to a creditor.

Following the decisions of this court, which have been- cited, we think the judgment of the Court of Civil Appeals should be reversed and that of the District Court affirmed; and it is accordingly so ordered. Judgment of Court of Civil Appeals reversed; judgment of District Court affirmed.