Upon filing the original opinion in this case, which reversed and rendered the judgment of the lower court, a fierce assault was made upon it in the motion for rehearing filed by defendants in error. I was therefore incited to make a more careful and closer consideration of the record by the zeal displayed by counsel for defendants in error. After a thorough consideration of the record, I am the more thoroughly convinced than at the outset that the said opinion correctly disposed of the case. I have seen nothing to cause me for a moment to have any doubt about its correctness, and I discuss the same here briefly again, feeling constrained to enter my dissent and disagreement with the majority opinion handed down by this court. What I shall say will be divided into three sections, viz.:
(1) The title of plaintiff in error, which can be briefly stated as follows:
The certificate from the state of Texas to John Andrews, together with its transfer to William Penn, and the indorsements thereon, is as follows:
"Republic of Texas, County of Liberty. No. 355.
"This is to that John Andrews has appeared before us, the board of land com'rs of the county aforesaid, and proved according to law that he emigrated to this republic on the 18th day of May A.D. 1836, a single man; that he has served in the army and rec'd an honorable discharge, and is entitled to one-third of a league of land, for which this is his certificate.
"Given under our hands, this 5th day of September, A.D. 1839. Hugh B. Johnson, Chf. J. C. L., Ex Off'o Pres. B. Land Com'rs. Alexander S. Roberts, Associate do. Associate do.
"Attest: Geo. W. Miles, Clk. Co. Court, Ex-Offo. C. B. Land Com'rs.
"Filed for record Aug. 9, 1875, and recorded in Deed Records of Trinity County, Texas, at Book B, pages 175 and 176.
"Know all men by these presents that I, John Andrews, sell, transfer or bargain, and deliver, in the county of Houston and republic of Texas, unto William Penn, in the county and republic aforesaid, the within claim or certificate, for the sum of seven hundred thirty-eight dollars and 50/100 cents in hand paid, the title whereof I will always support and defend against my heirs, assigns, administrators or administratrix, as
"Given under my hand and seal this 1st day of November, 1839 John Andrews. [Seal.]
"Signed and delivered in the presence of us: Test: B. F. Wright. C. N. Nelson.
"The State of Texas, Travis County.
"Before me, N.C. Raymond, a notary public in and for said county, duly commissioned and sworn, personally appeared B. F. Wright, who is represented to me as the identical B. F. Wright whose signature appears as a witness to the transfer hereto annexed, who upon his oath says, that he was present and saw John Andrews sign the same as his voluntary act and deed, and that he acknowledged that he did so for all the uses, purposes and considerations therein set forth and expressed; that he signed the same as a witness at the request of the said parties thereto.
"Given under my hand and notarial seal, at Austin, this 3d November 1856.
"[L. S.] N.C. Raymond, Not. Pub. Travis Co.
"General Land Office, Austin, Texas, November 3rd, 1856.
"I, S. Crosby, commissioner of the general land office of the state of Texas, hereby certify that the foregoing, with the erasures, are correct copies of the originals now on file in this office.
"In testimony whereof I hereunto set my hand and affix the seal of said office the day and date last above written.
"S. Crosby, Com'r.
"Filed for record this 23d Feby., 1859.
"B. S. Mangum, Clk.
"The State of Texas, County of Trinity.
"I hereby certify that the foregoing deed of conveyance is duly recorded in my office, in Book B, pages 527 and 528, of the County Records for Deeds, etc.
"In testimony of which I have hereunto set my hand seal of office at Sumpter, 25th March, 1859.
"Bryant S. Mangum, Clk. Co. Ct.
"Filed for record August 9th, 1875, and recorded in Deed Records of Trinity County, Texas, Book B, pages 175 and 176."
In connection with the transfer was offered a certified copy of returns of the field notes showing that the land was surveyed for William Penn by Chas. C. Nelson, deputy surveyor of Houston county, on February 1, 1838, which, with the indorsements thereon, is as follows:
John Andrews.
William Penn, Assge.
Certificate No. 355.
Liberty County
Survey for William Penn of 6,376,000 sqr. varas of land on the east bank of Trinity river, being part to which he is entitled by virtue of certificate No. 355 issued to John Andrews by the board of land commissioners of Liberty *Page 387 county, situated in Trinity county on the bank of Trinity river about 6 miles above the mouth of White Rock Creek. Beginning at stake on B. P. Wright's south boundary of third whence a pine S. 46° W. mkd. P 9 4/10 varas dist a pine S. 81 1/2° W. Dist 4 varas. Thence south at 540 varas Brch C. S. S.W. at 775 road at 1090 second crossing of Brch C. S. S.E. at 4000 va. Edge of river bottom at 5130 corner on river bank a sycamore mkd P N, Whence a cotton wood dist 10 varas S. 76° W. Thence with the river S. 77° E. 400 varas N. 80° E. 895 to William Richards' upper corner on river bank, Pecan whence an ash N. 11° E. dist. 15 varas mkd. R. Thence with Richards' west boundary line north at 200 varas Lake 150 vs. across at 1460 leave bottom at 4950 corner of said Richards' survey stake whence a pine 10 4/10 varas dist mkd W. R. N. 23 W. a hickory S. 45° W. mkd W. R. 11 varas. Thence west at 1,265 varas beginning corner. Three labors arable and remainder pasture land. Chas. S. McCoy, J. V. Pringle, Chain Carriers.
I, Chas. C. Nelson, do solemnly declare by the oath of my office that the foregoing survey has been made since the first day of Feby., 1838
Chas. C. Nelson,
Dept Surveyor Houston Co.
Houston Co. Oct., 1839.
Republic of Texas Crockett, Sept. 7, 1842.
Received of the hand of B. F. Wright thirty dollars 83 cents promissory notes of the government the government dues in the within field notes.
E Zepett, Chief Justice and Receiver
of Land Dues Houston Co.
No.
John Andrews.
2d Class.
One third league.
Houston County.
In survey of 6,376,000 vrs.
83,857 36/100 sq. var.
14 6/7 acres too much.
In survey of 1,957,333 sq. vr.
35,692 96/100 sq. var.
6 1/3 acres too much.
The rivers are not well meandered. L. M. M.
2/No. 44.
John Andrews.
2nd Class 6,376,000 varas. Houston Co.
I certify that I have examined the within field notes and find them correct and the survey made according to law.
Houston County, Nov. 13, 1839.
Geo. Aldrich, C. Surveyor Houston Co.
3/File 44.
Houston Co 2nd Class.
Field Notes.
John Andrews.
6,376,000 varas.
Patented Oct. 19th, 1850.
Grooms.
456(1).
M. No. 1089.
Certified copy made by J. T. Robison Commissioner of the General Land Office of Texas on January 19th, 1915.
The patent issued to John Andrews, and by some means was found in the possession of his heirs, and later came into the possession of S. T. Robb. Said patent, together with the indorsements thereon, is as follows:
"No. 461. In the Name of the State of Texas Vol. 3.
"To all to whom these presents shall come: Know ye I, P. H. Bell, Governor of the state aforesaid, by virtue of the power vested in me by law and in accordance with the laws of said state in such case made and provided, do by these presents grant to John Andrews, his heirs or assigns, forever, six million three hundred and seventy six thousand square varas of land, situated and described as follows:
"In Houston district, Trinity county, about 6 miles above the mouth of White Rock creek, by virtue of certificate No. 355, issued by the board of land commissioners of Liberty County on the 5th day of September, 1839, beginning at a stake on B. F. Wright's S. line, from which a pine marked P bears S. 46° W. 9 4/10 vars, another bears S. 87 1/2 varas; thence South at 540 varas a branch, at 775 varas a road, 1990 vs. crosses (crosses) branch, 4000 vs. edge of river bottom, 5130 vs. to a sycamore mkd P M on the banks of the river, from which a cottonwood bears S. 76° W.; thence, with the river S. 77° E. 400 vs. N. 80° E. 895 vs. to William Richards' upper corner on the bank of the river, from which an ash mkd E. bears N.W., E. 15 vs.; thence with Richards' W. line, N. at 100 vs. lake, at 150 vs. crosses same, at 1400 vs. leave bottom, at 4950 vs. said Richards' corner, a stake from which a pine mkd WR bears N. 23 W. 10 4/10 vs. a hickory marked WE bears S. 45° W. 11 varas; thence west at 1,265 varas, the beginning. Hereby relinquishing to him, the said John Andrews, and his heirs or assigns, forever, all the right and title in and to said land heretofore held and possessed by the said state, and I do hereby issue this letter patent for the same.
"In testimony whereof I have caused the seal of the state to be affixed, as well as the seal of the general land office. Done at the city of Austin on the 19th day of October in the year of our Lord one thousand eight hundred and fifty. P. H. Bell, Governor. [State Seal.] Geo. W. Smith, Commissioner of the Gl. L'd Office [Seal of G'l L'd Office.]
"The State of Texas, Houston County.
"I hereby certify that the within letters patent is duly recorded in Book M, page 281, of the Records of Said County for Deeds, etc.
"Witness my hand and seal of office, at Crockett, this 23d day of June, A.D. 1858, at 10 o'clock a. m.
"[L. S.] O. C. Aldrich, Clk. Co. Ct. H. Co.
"Filed for record June 21, 1858, at 8 o'clock a. m. O. C. Aldrich, C. C. C. H. C.
"The state of Texas, County of Trinity.
"I hereby certify that the within letter patent is duly recorded in Book B, pages 545 6, of the Records of Said County for Deeds, etc.
"Witness my hand and seal of office, at Sumpter, this 27th April, A.D. 1859. Bryant S. Mangum, Clk. Co. Ct. Trinity Co., Texas.
"Filed for record 19th April, A.D. 1859. B.
S. Mangum, Clk. Co. Ct. Trinity Co.
"Also filed for record June 4th, 1877, and recorded in Deed Records Trinity County, Texas, at Book C, on pages 19, 20, and 21."
Follows the deed from Clement Penn and others to A. J. Frisby, dated October 12, 1861, for a consideration of $5,051 paid, conveying "all that tract or parcel of land lying and being situated in the county of Trinity, state of Texas, and known as the Penn tract of land, lying on Trinity river, in said county [here following the same field notes set out in the patent to John Andrews, quoted above], containing 1,020 acres of land, more or less," said deed having been filed for record August 9, 1875, and recorded in the Deed Records of Trinity County, Tex., at Book B, page 177.
Then the deed from A. J. Frisby and wife, Elizabeth Frisby, to Mrs. Margaret McDonald, dated November 12, 1861, reciting a consideration of $5,051 paid, conveying the same 1,020 acres described in the patent and deed *Page 388 next above, "known as the Penn tract," said deed having been filed for record on August 9, 1875, and recorded in the Deed Records of Trinity County, Tex., in Book B, page 178.
Next deed from Mrs. M. Frisby and others to J. Lyle Smith, administrator, as follows:
"The State of Texas, County of Walker.
"Know all men by these presents that whereas, on the 12th day of October, A.D. 1861, Clem't Penn. O. L. Taylor and his wife, Francina Taylor, as heirs of William Penn, dec'd, executed in the state of La. and parish of Rapides, before Prank E. Forks, notary public, a deed to A. J. Frisby to all that certain tract or parcel of land lying in Trinity county, Texas, on the Trinity river, known as the Penn tract, containing one-third of a league, which deed has not been recorded; and whereas, on the 12th day of November, A.D. 1861, A. J. Frisby and his wife executed to Mrs. M. McDonold a deed to the same land, which has not been recorded; and whereas, J. Lyle Smith, as administrator of B. F. Wright, dec'd, and as agent of said O. L. Taylor, holds the notes of said M. McDonold, one to O. L. Taylor for $2,000.00, and the other to B. F. Wright for $2,550.00, both dated November 12th, 1861; and whereas, the said A. J. Frisby and Mrs. M. McDonold have since intermarried, and propose to give up said land, as they are unable to pay said notes, to said Smith as administrator aforesaid, and said Taylor and wife and Clem't Penn, one half to be held by said Smith as administrator of B. F. Wright, dec'd, and the half to said Penn's heirs; and whereas, the said Smith has delivered up to said M. McDonold, now Mrs. Frisby, said two notes canceled: Now, therefore, in consideration of the premises, I, M. Frisby, being joined by my said husband, A. J. Frisby, do by these presents sell, grant and convey unto the said J. Lyle Smith and to the said O. L. Taylor and his wife, Francina Taylor, and Clem't Penn, all my right, title, interest and claim in and to said tract of land. To have and to hold the same, in equal, undivided moieties, that is to say, one undivided half unto Smith as administrator of B. F. Wright's estate, and the other undivided half unto the said Clem't Penn, O. L. Taylor, and Francina Taylor, it being expressly understood that I convey no title but such as I have through the chain herein described.
"Witness our hands and scralls for seals this June 12th, A.D. 1869. A. J. Frisby. [Seal.]
"M. Frisby. [Seal.]"
This deed was acknowledged by grantors before J. Courtade, clerk of the county court of Walker county, Tex., June 11, 1869, filed for record August 9, 1875, and recorded at Book B, page 179, Deed Records of Trinity County, Tex.
Next was introduced the admission of counsel that Mrs. M. McDonald married A. J. Frisby after the conveyance to her by Frisby and wife.
There was also introduced an admission by counsel that J. Lyle Smith was duly appointed administrator of the estate of B. F. Wright, deceased, and duly qualified as such, and that in the inventory of the estate of B. F. Wright, deceased, there occurs the following:
"Note of M. McDonald dated November 10th, 1861, due June 4th, 1861, $2,551.00."
There was introduced in evidence the admission of counsel that the plaintiff has conveyances from all the heirs of B. F. Wright, deceased, and the further admission that Amanda C. Wells and the other grantors in the deed dated September 10, 1903, to C. H. Kenley, are the only heirs at law of Clement Penn, who was a son and heir at law of William Penn, deceased.
There was read in evidence a deed from Mrs. Sarah K. Smith, widow and sole executrix of the will of J. Lyle Smith, which will authorized said executrix to make sale of and convey lands belonging to the estate of the deceased to C. H. Kenley, and also there was read in evidence a deed from Amanda Caroline Wells and another to C. H. Kenley.
As shown by the above, the instruments were recorded and were of record in Trinity county prior to the time any claim was set up or made by Robb or his heirs or assigns, through whom defendants in error claim. All of said instruments being upon record in Trinity county, an attack was made by defendants in error in this suit that the transfer of the certificate from Andrews to Penn did not entitle the same for registration, on account of the defective acknowledgment. This matter was thoroughly gone over, and the authorities cited at length, in the original opinion filed in this cause on December 21st, and as said in that opinion:
"The authorities settle the question beyond the peradventure of a doubt in favor of the contention of plaintiff in error, and we are persuaded that the certificate under consideration is a substantial compliance with the statute, and that the court erred in holding that the same was insufficient."
I am still of opinion that the certificate is good, and is a substantial compliance with the statute, and entitled the certificate and its transfer to be registered. Conceding that to be the law, all of the above instruments, with the declarations and statements in the same, being properly of record, were sufficient, in my judgment, to charge purchasers under the heirs of John Andrews with constructive notice of any rights to the land in controversy in William Penn or others holding under him.
(2) It is urged by defendants in error that they are purchasers of the land for value without notice.
Examination shows that Robb, under whom defendants in error claim, is holding under the heirs of John Andrews, the patentee of the land, and it was admitted that he had conveyances from the sole heirs at law of Elizabeth Foster, and under her, the sole heirs of John Andrews, the patentee of the land. This conveyance was executed on the 30th day of November, 1876, and was filed for record June 4, 1877, and recorded in the Deed Records of Trinity County. In view of the fact that Robb was not only charged with notice, by the registration of the conveyances heretofore set out, that the certificate had been transferred from John Andrews, the trial court in addition filed conclusions of Law and fact in this case, section 25 of same reading as follows: *Page 389
"Prior to the purchase of said land by the said Sam T. Robb from the heirs at law of said Elizabeth Foster, the said Sam T. Robb had actual notice of the transfer of said certificate by John Andrews to William Penn."
So it appears that those holding under Robb, in so far as he is concerned, could not be heard to say that he was an innocent purchaser.
The same might be said of Leach, notwithstanding the fact that he testified by affidavit that he paid S. T. Robb a valuable consideration for 200 acres of land, and that at the time he bought he had no actual notice of a conveyance of the land certificate by John Andrews to William Penn. If such be the case, it seems that Robb not only concealed from Leach the facts in his possession, and of his actual knowledge of the transfer of the certificate from Andrews to Penn, but also the said Robb seems to have gotten into his possession the patent of the land, which perhaps had come into his hands in the transaction in the purchase from the heirs of John Andrews.
We are compelled to assume, the record being silent, that Leach either did not inquire of Robb or that, if he did inquire, Robb concealed the facts and failed to give him information of his actual knowledge of the transfer of the certificate from John Andrews to William Penn. Nevertheless the same record was in existence of the title heretofore set out, and Leach was charged with knowledge of the recitations in the conveyances, that is to say, he was put upon notice by the record then existing in Trinity county, and before he purchased, that the land was originally granted to John Andrews; that the certificate was transferred to William Penn; that the identical land in controversy had been surveyed, the field notes of the same specifically described the land; that patent had issued to the same; that the land had been sold to A. J. Frisby, and that he had sold the same to Mrs. McDonald; that the notes of said Mrs. McDonald had not been paid, and that B. F. Wright, agent of Taylor, held the notes of said Mrs. Margaret McDonald; that the notes which were given by her were dated November 12, 1861; and that one of the notes was for $2,000 and the other was for $2,550. He was charged with notice that Frisby afterwards intermarried with Mrs. Margaret McDonald; that they were unable to pay the notes to Smith, and that the two notes were delivered to Mrs. McDonald, then Frisby, and canceled, in consideration of a conveyance by Frisby and his wife, Mrs. Margaret Frisby, to J. Lyle Smith, and to Taylor and his wife, and to Clement Penn. All of these recitations were of record, as had been said before, were open to the inspection of the public, and it was the duty of a purchaser at least to make inquiry, and make some attempt to ascertain whether or not the facts were correctly recited, and whether the heirs of John Andrews, who had conveyed to Robb, and with whom Leach was then dealing, had any legal or equitable title to the land in controversy. Therefore, to my mind, neither Robb, who was found by the trial court to have actual knowledge of the transfer of the certificate from Andrews to Penn, nor Leach, who was charged with notice, could in any event be innocent purchasers for value.
(3) However, it is claimed that there was an outstanding title which would prevent a recovery on the part of the plaintiff in error; an outstanding title with which defendants in error are not connected; an outstanding title under a sheriff's deed; an outstanding title under which no claim is made in this suit, and which for the past 40 years has been practically ignored.
The sheriff's deed has heretofore been set out in full in the original opinion. It is admitted that there is nothing whatever, except the recitations in the deed itself, on which to base a claim under the deed. This phase of the case, however, has been covered in the original opinion, and it will be observed, as said in the original opinion, that:
"It does not appear from the recitals in the deed that any valid judgment was ever rendered against Margaret Frisby, or that any of the legal requirements necessary to a valid sale by the sheriff had been complied with. The sheriff does not even state that notice was given of the time and place of the sale, as required by law."
However, if it be a fact, as the recitations in the instruments proclaim it to be, that Frisby and wife had sold to Mrs. Margaret McDonald, that two notes had been executed for the payment of the purchase money, that the said notes were in the hands of other parties, and that after the intermarriage of Frisby and Margaret McDonald a deed was executed conveying the title to the holder of the notes, and that thereupon the said notes were canceled, we are at a loss to understand, inasmuch as the parties certainly had a right to make a conveyance of the land in payment of the unpaid purchase-money notes, and in face of the fact that neither Frisby nor Margaret McDonald Frisby own any interest in the survey, how a title which they did not own could be divested out of them, or either of them. Moreover, it is from this record sure, as much so as can be established by acts of the parties, and circumstances, and facts, that no claim is being made under the deed by those holding under same, and that none has been asserted for nearly half a century, the conclusion being irresistible that the parties knew and had reason to believe at the time that the real facts were as recited, and that Mrs. Margaret Frisby had conveyed all her right, title, and interest in the land in payment of the cancellation of the purchase-money notes executed for said land, and only on that theory can we account for the want of action on the part of the parties holding under said sheriff's deed.
To summarize, we have this situation: A good and perfect title of record in plaintiff *Page 390 in error, and, as against this, a claim of defendants in error, begun when all the instruments were of record in Trinity county, and Robb had actual notice of the transfer from Andrews to Penn, that they are innocent purchasers for value, which was a contradiction in terms. Then this purported outstanding title, which fails to measure up to the requirements of the law, joined to and aided by the acts of the parties themselves, who have a right to claim under the aforesaid sheriff's deed, and do not, then the conclusion is indeed irresistible that the claim of defendants in error cannot stand, as being legally insufficient, and contrary to law and equity and good conscience.
Constrained by a sense of duty, therefore, I file this, my dissent to the majority opinion of the court heretofore handed down.