Appellants insisted in the court below that they were entitled to a judgment on the findings made by the jury, and assign as error the refusal of that court to render a judgment in their favor.
In submitting issues the court assumed that the deed from Abel Boles and his wife to Sarah Haley was delivered to her, and was sufficient as a conveyance to her of the land in controversy. We think the testimony authorized both assumptions, and would not support findings to the contrary. The title to the 400 acres being in Sarah Haley at the time Abel Boles undertook to convey same as a part of the 739 acres tract to Van Meter, and the jury having found (on testimony sufficient, we think, to support their finding) that at that time Van Meter had notice of Sarah Haley's claim, it is apparent that appellants' contention should be sustained, notwithstanding the finding that Van Meter paid Boles for the land, unless the judgment can be upheld on findings not made by the jury, but which the court was authorized to make, and which in support of his judgment it should be assumed he did make. For payment by Van Meter to Boles of the value of the land at a time when he was chargeable with knowledge of the fact that Sarah Haley owned it would not entitle him, nor his grantees in his right, to claim protection as against her claim or that of her heirs.
Appellees insist that effect may be given to the findings of the jury on the issues submitted to them, and the judgment nevertheless be sustained on findings the court was authorized to make, and which it should be assumed he did make, as follows: (1) That Sarah Haley reconveyed the 400 acres to Abel Boles. (2) That Huntington and the lumber company, respectively, were innocent purchasers. The burden of proving the affirmative of these contentions was on appellees.
As we view the record, there was no testimony on which a finding that Sarah Haley had reconveyed the land to Abel Boles could be based. The inferences from the testimony appear to us to be to the contrary of such a conclusion, and to indicate that the parties concerned were of the opinion that, because the deed to her from Abel Boles had not been placed of record, his deed to Van Meter would operate to pass the title to said Van Meter. The agreement which the jury found Sarah Haley and the other children of Abel Boles entered into strongly tended to show that they took that view of the matter. If Sarah Haley believed the effect of her father's deed to Van Meter was to pass her title to him, it would satisfactorily account for the fact that after 1881 she did not pay taxes on the land, nor assert ownership thereof. Lumber Co. v. Gwin,29 Tex. Civ. App. 1, 67 S.W. 892, 68 S.W. 721.
Aside from the recital in the deed to him from Van Meter, there was no testimony showing or tending to show that Huntington *Page 599 paid anything for the land. To entitle appellees to claim in Huntington's right as an innocent purchaser, they must have shown by other testimony than the recital in the deed to him that he paid a valuable consideration for the land. That such is the rule has been too long established to be questioned now. Watkins v. Edwards, 23 Tex. 447; Davidson v. Ryle,103 Tex. 209, 124 S.W. 619, 125 S.W. 881; Bledsoe v. Haney, 139 S.W. 612.
The testimony, we think, was sufficient to show that the lumber company paid to Downs a valuable consideration for the land, and was entitled to protection as an innocent purchaser thereof if it was not chargeable with knowledge of the fact that Abel Boles before he undertook to convey it to Van Meter, whose title it relied on, had conveyed it to Sarah Haley. Whether the lumber company was chargeable with such knowledge or not depended upon the effect which should have been given recitals in the deeds from Abel Boles and his wife to Elizabeth Lout and from Elizabeth Lout to Huntington. In the first mentioned of the two deeds Boles and his wife described the land thereby conveyed as "a part of the headright certificate of Stephen English and the balance of the 750 acres deeded by J. J. Cravens to Abel Boles, to contain 150 acres lying north of a 400-acre tract this day deeded to Sarah Boles, alias Sarah Haley, and south of a 200-acre tract this day deeded to Joseph Boles and Wm. Boles, and we do this day give, grant and convey to the said Elizabeth Lout the 150 acres lying between the two surveys." In the other of the two deeds Elizabeth Lout described the land thereby conveyed as a "part of the headright of Stephen English and laying north of a 400-acre tract deeded to Sarah Boles, now Sarah Haley, and south of a 200-acre tract deeded to Joseph Boles and W. M. Boles, containing 150 acres lying between the two surveys above mentioned. The foregoing land was conveyed to me by my father Abel Boles, and said deed supposed to be lost at the time Abel Boles conveyed the same land to B. F. Van Meter." These two deeds were relied upon by the lumber company as evidence of title in it to a part of the 739-acre tract including the land in controversy. "It is well established," said Chief Justice Roberts in Willis v. Gay, 48 Tex. 469,26 Am.Rep. 328, "that if a fact is recited in a deed, through which a party claims title to land, he is held to have notice of that fact." And see Peters v. Clements, 46 Tex. 123; Renick v. Dawson, 55 Tex. 109; Caruth v. Grigsby, 57 Tex. 259; Smith v. Estill, 87 Tex. 264, 28 S.W. 804. When the rule is applied to the recitals copied above from the two deeds referred to, it is clear that the lumber company must be held to have had notice of the deed to Sarah Haley; for the recital in the deed to Elizabeth Lout was to the effect that the 150 acres Boles and his wife thereby conveyed to her was the balance of the 750 acres of the Stephen English survey conveyed to Boles by Cravens, lying between 400 acres thereof conveyed by Boles to Sarah Haley and 200 acres thereof conveyed by him to Joseph and William Boles. The lumber company was thus plainly advised that Boles and his wife on May 21, 1875 (the date of their deed to Elizabeth Lout), had conveyed the land in controversy to Sarah Haley. In face of this information so imparted to it, the lumber company would not be heard to say it was ignorant of the fact that Sarah Haley owned the land at the time Abel Boles undertook to convey it to Van Meter and at the time it purchased same of Downs.
On the facts as shown by the record we think no other judgment than one in favor of appellants was authorized. Therefore the judgment rendered by the court below will be reversed, and a judgment will be here rendered in favor of appellants.
On Motion for Rehearing. After considering the question further, we think the conclusion reached that the lumber company, because of the recitals in the deed from Abel Boles to Elizabeth Lout and from the latter to Huntington, could not be heard to say it did not have notice of the conveyance from Abel Boles to Sarah Haley was erroneous. It would have been correct had it appeared that the title of the lumber company to the land in controversy depended on either of those deeds. But neither of them was a link in the lumber company's chain of title to that land, and therefore the rule invoked in disposing of the question did not apply. 2 Devlin on Deeds, and authorities cited in note 3, p. 1891. As the recitals in the deeds referred to did not operate as an estoppel against the lumber company, it had a right to show it did not as a matter of fact have notice of the conveyance to Sarah Haley. The question, therefore, simply was one as to the sufficiency of the testimony it relied on to show lack of notice to support the finding involved in the judgment that it did not have notice. We cannot say that testimony was not sufficient to support the finding. The witness Pickering, who was the lumber company's vice president, treasurer, and general manager at the time it purchased the land of Downs, and who acted for it in making the purchase, testified that he nor any one acting for said company did not know of the existence of the conveyance to Sarah Haley, and that he had never heard from any source of the existence of such a conveyance until after the lumber company purchased the land in controversy. This testimony, it seems to us, must be said to have authorized the finding it must be assumed the court made, that the lumber company did not have notice of the conveyance to Sarah Haley. If it did *Page 600 authorize such a finding, then we must treat it as binding on us and establishing the contention made that the lumber company was entitled to protection as an innocent purchaser of the land in controversy. If it was entitled to such protection, then the judgment rendered by the court below was not erroneous, and we erred in setting same aside. Therefore the motion will be granted, and the judgment of the court below will be affirmed.
On Appellants' Motion for Rehearing. We adhere to the conclusion reached that appellee was not estopped by the recitals in the deed from Abel Boles to Mrs. Lout and in her deed to Huntington from asserting it was without notice of the fact that Abel Boles before he conveyed the 400 acres in controversy to Van Meter had conveyed same to Mrs. Haley. The deeds from Abel Boles to Mrs. Lout and from her to Huntington did not convey, and did not purport to convey, the land, or any part of it, in controversy here. They conveyed other land. The fact that such other land was included in a 739-acre tract which also included the 400 acres in controversy, and the fact that the entire 739-acre tract was conveyed to appellee's vendor by Huntington, we think are not reasons requiring a conclusion contrary to that reached by us. Appellee was not in the attitude of asserting, and could not assert, title to the land in controversy by virtue of those deeds. As we understand the rule, recitals, when relied on in cases like this one is, operate as an estoppel only when they are contained in instruments constituting the muniments of the title in the party against whom the estoppel is claimed.
The deed from Downs to appellee contained a covenant of general warranty of the title to the land, and a recital that a vendor's lien had been reserved to secure the payment of bonds representing the part unpaid of the purchase money. It not appearing that the bonds had been paid, appellants insist it should be held that the legal title to the land was in Downs and not in appellee, and therefore that appellee was not in a position to claim protection as an innocent purchaser of the land. National Oil Pipe Line Co. v. Teel, 95 Tex. 586, 68 S.W. 980. The argument is that, until the purchase money has been paid, such a deed operates as an executory, and not as an executed, contract of sale. That this is true, as between the vendor and vendee, when the suit is to enforce payment of the purchase money, is shown by the case appellants cite (Lanier v. Foust, 81 Tex. 186, 16 S.W. 994) and many others of like character decided by the courts of this state; but we have not been able to find an instance where the rule has ever been applied in any other character of cases, and we think it should not be applied in a case like this one is. Mason v. Bender, 97 S.W. 718; Carey v. Starr, 93 Tex. 508,56 S.W. 325; Ogburn v. Whitlow, 80 Tex. 239, 15 S.W. 807; Blewitt v. Greene, 57 Tex. Civ. App. 588, 122 S.W. 916; Chase v. Swayne, 88 Tex. 218,30 S.W. 1051, 53 Am. St. Rep. 742.
The proof being that only a part of the purchase money appellee had agreed to pay for the land had been paid, appellants insist that, if appellee was entitled to claim protection as an innocent purchaser at all, it was entitled to claim such protection only as to the portion it had actually paid of the purchase price. But it appeared that it had executed and delivered its negotiable bonds for the part unpaid of the purchase money. It therefore was entitled to claim as innocent purchaser as to the whole of the purchase price. Cameron v. Romele, 53 Tex. 244; Dodd v. Gaines, 82 Tex. 435, 18 S.W. 618; Le Page v. Slade, 79 Tex. 478,15 S.W. 496; Watkins v. Spoull, 8 Tex. Civ. App. 427, 28 S.W. 358; Taylor v. Callaway, 7 Tex. Civ. App. 461, 27 S.W. 938.
The motion is overruled.