On Motion for Rehearing. Plaintiff in error calls our attention to an evident error in our original opinion in the use of the following language, to wit:
"Moreover, the Eylar Case is inapplicable here, because the purported deed from the Olds does not appear to have been of record at the time of the conveyance from Adoue to Mason."
Counsel calls our attention to page 17 of the statement of facts, where it is shown that the deed from the Olds to Blake was "filed for record May 20, 1911," in the office of the county clerk of Taylor county. We were no doubt led into this misstatement by the unchallenged assertion in defendants in error's brief to the effect that plaintiff in error "was claiming under an unrecorded deed," and by the further fact that the statement of facts, page 2, where it records the introduction of this deed by plaintiff in error merely recites that "said deed recorded in volume 42, page 573, Taylor county deed records," and fails to give the date of said record. Therefore we concluded that the record failed to show the date of the filing and recording of said deed, and assumed that the statement made in defendant in error's brief referred to this deed and was a statement of an uncontroverted fact. But it appears that the omission to show date of filing and recording of said deed at the time the same was introduced in evidence by plaintiff in error was supplied at the time of the introduction of the deed by defendant in error. The deed from J. B. Adoue to plaintiff was acknowledged August 7, 1912, and recorded August 24, 1912. Hence it follows that the deed from the Olds to Blake was of record at the time plaintiff in error purchased the property, and we desire to withdraw the statement to the contrary.
But we do not think the fact that the deed from the Olds to Blake was of record at the time Mason purchased the property would be determinative of the question of the sufficiency vel non of notice given, by reason of the Olds being in possession of and occupying as a homestead the premises involved. As is shown in the first appeal of Chamberlain v. Trammell,61 Tex. Civ. App. 650, 131 S.W. 227, cited in the original opinion, the purported deed from the Chamberlains to Carson, and the deed from Carson to Trammell, were of record at the time the guardian of Worth Moore purchased the vendor's lien notes mentioned in the deed from the Chamberlains. While the opinion of the Court of Civil Appeals in61 Tex. Civ. App. 650, 131 S.W. 227, on the first appeal expressed the conclusion that the decision rendered by said court was not necessarily in conflict with the holding in the Eylar Case, because in the Chamberlain Case the premises were in possession of tenants of the Chamberlains, yet it seems to us that such possession by a tenant fails to present any real difference, for the very basis of the decision in the Chamberlain Case was the holding that the possession by tenant under the circumstances did not constitute an abandonment by the Chamberlains of the property as a homestead; that the possession of the tenant was in fact the possession of the real owners. On the second appeal, this court followed the decision of the Texarkana court, as being the law of the case until overruled by the Supreme Court, without attempting to say whether it would have held differently if the question had been an original one with it. See 152 S.W. 195. The Supreme Court affirmed the judgment in an opinion found in 195 S.W. 1135, without attempting to differentiate the facts from those disclosed in the Eylar Case, using the following language:
"We are of the opinion that the deed of conveyance by the trustee, Locket, to the plaintiff in error, Moore, was void, and not voidable. When the plaintiff in error purchased the land from the trustee, it was in possession of the tenants of the Chamberlains. This placed him upon inquiry, as a matter of law, as to whether the deed from the Chamberlains to Carson and from Carson to Trammell were absolute, or were intended only as mortgages. There being no finding that he exercised any diligence by making inquiry, the possession of the tenants constituted actual notice to him that the deeds were intended as mortgages. Ramirez v. Smith, 94 Tex. 191, 59 S.W. 258; Colluum v. Sanger Bros., 98 Tex. 162,82 S.W. 459, 83 S.W. 184. Under the provisions of the Constitution a mortgage, as between the parties to it and as to others not innocent purchasers, upon a *Page 1046 homestead is void, and not voidable. Const. art. 16, § 50."
In the instant case, there was not merely the absence of a finding by the jury that plaintiff in error was an innocent purchaser, but there was a positive finding that he had notice that the purported deed from the Olds to Blake was intended as a mortgage, and also that his predecessors in title subsequent to the Olds had such notice. There is some language used in the Ramirez v. Smith Case, supra, indicating an opinion that the holding in the Eylar v. Eylar line of cases must be based on a showing that the purchaser examined the record and found thereon a deed in form and purport from the claimant, before he can effectually meet the defense of notice urged by the claimant by reason of the latter's occupancy of the premises as a homestead at the time of the purchase. In other words, in order for his adversary to overcome the burden of notice of claimant's right and title by reason of the latter's possession, such adversary must show that he examined the record and was misled thereby, and that the claimant is thereby estopped from showing the truth. If this be the reasoning indicated in the last-cited case, and it seems to us that the holding in the Eylar Case is evidently predicated on the theory of estoppel, then in the instant case the plaintiff in error fails to show facts entitling him to rely on such a plea. The testimony of plaintiff in error discloses that he made no examination of the deed records, never saw the property, and knew neither of the Adoues, nor Blake, nor the Olds, and relied "on an abstract to this property with opinion signed D. M. Oldham, Jr., dated November 5, 1909." This was prior to the execution of the mortgage by the Olds. Plaintiff in error further testified:
"Mr. James never discussed this property with me at any time. I purchased this property at the request of a close personal friend, but I decline to give his name. I decline to give the name of the party who first offered this property to me for sale. I bought this property because I was requested to do so by a personal friend. I decline to state on whose representations I relied in making this purchase. These representations were made to me in San Angelo, but I decline to tell where the other party was. If I ever saw this property I do not know it. * * * The fact is the abstract of title, with D. M. Oldham, Jr.'s, opinion, dated November 5, 1909, stating that the title was good in Mrs. Mattie J. Irvine, was turned over to me upon the payment of the $3,500 draft to the San Angelo National Bank. At the same time the bank turned over to me with the abstract and Mr. Oldham's opinion attached, stating title was good, deed from Mattie J. Irvine to Francis B. Olds, and also deed from Francis B. Olds to L. B. Blake, and deed from L. B. Blake to J. B. Adoue, and deed from J. B. Adoue to G. S. Mason. All these papers were turned over to me at the time of my settlement with the bank, and I have had them in my possession ever since. * * * No one told me that the title to the property was good, that I can remember of, but I relied upon the abstract with opinion of D. M. Oldham, Jr., attached, stating that title was good, and the chain of title through the deeds handed me by the bank from Irvine down to and including J. B. Adoue. I relied upon these facts in forming my conclusion that the title was good. I don't understand that I bought this property from the Mason-Hughes Company, a concern incorporated and doing business at Abilene and San Angelo, Tex. The officials of this Mason-Hughes Company are G. S. Mason, president, and Ed S. Hughes, secretary and treasurer. I do not know that the property in controversy was ever listed with the Mason-Hughes Company for sale."
An excerpt from Mr. Olds' testimony may tend to shed light upon the source of Mason's information concerning the property in controversy. Mr. Olds testified:
"At the time I testified that I owed them something over $20,000, they didn't hold my notes at that time. After that Mr. Keeble asked me to come over and see Mr. James and fix it up. I was sick at that time in bed. That was about the 1st of September, 1910. When I got up Mr. James was out of town a few days, and when he came back, Mr. Keeble met me on the street and said Mr. James was in town and wanted me and Blake to go to the bank, which we did, and went up to Mr. Hughes' office. Mr. Keeble, Blake, Henry James, and myself went up to Mr. Hughes' office. When we got up there Mr. James asked how bad it was and I told him, etc."
Apparently, from this testimony, Mr. Hughes had some connection with the bank, whose officers sought to secure an indebtedness owing to it from Olds, by the means disclosed in the record. It is probably justifiable for us to conclude that the relationship of Mr. Hughes to the bank and to the Mason-Hughes Company was made more apparent to the Taylor county jury, who were likely acquainted with Mr. Hughes and his business connections, than would be shown by the mere recitation of the portion of the testimony hereinabove set out. It is often true that during the trial of a case important evidentiary facts rest upon seemingly slight testimony, because special significance is given to such testimony by reason of conditions and circumstances generally known and recognized by counsel and jurors. While we are not disposed to read into the record something there not contained, yet we are not prepared to say that the jury was unauthorized to find from the evidence just quoted that Mr. Hughes was an officer in the Abilene bank as well as in the San Angelo company, and that the jury was not justified in concluding that when the plaintiff in error testified that he had a conversation with Hughes before he purchased the property, and when he stated that the representations were made to him in San Angelo, but declined to state where the other party to the conversation was, that the witness thereby practically admitted that the telephone conversation referred to was with Mr. Hughes himself. It is often difficult to present in the dry recitations in a statement of facts the importance and force of a palpable evasion by an interested witness of a question propounded, or the significance to be given of his refusal to answer, etc. The jury who heard the testimony and listened *Page 1047 to and saw the witnesses testify reached the conclusion that plaintiff in error knew at the time he purchased the property that the deed from the Olds was intended as a mortgage; the court, who also heard the testimony, declined to set aside that verdict, but on the contrary entered judgment thereon, and we do not feel Justified in disturbing that verdict and judgment by holding that the evidence is Insufficient to sustain the finding of the jury that the plaintiff in the case did have such knowledge.
By the use of the expression in the original opinion, to wit, "We think that constructive notice, at least, was shown by the lis pendens record Introduced," we did not mean to hold that the lis pendens notice provided in the statute constituted constructive notice itself, but only that it placed the purchaser of the property on inquiry as to what the real facts were; as to what an investigation would have disclosed. If he had followed the direction of this signpost, the plaintiff in error would have found that suit had been filed by Mrs. Olds on July 12, 1912, in the district court of Taylor county to remove cloud from title and to cancel the very instrument, and the notes thereunder, the validity of which plaintiff In error seeks to rely on in this case. If he had pursued his investigation further, he would have found that a Judgment had been entered in favor of Mrs. Olds and her husband, on September 4, 1912, canceling said deed and notes.
We are of the opinion that the motion for rehearing should be overruled and it is accordingly so ordered.
CONNER, C.J., not sitting, serving on writ of error committee at Austin.