Tobin v. Benson

PRESLER, J.

This is a suit in trespass to try title, instituted by J. W. Tobin, appellant, against W. D: Benson and W. E. Freize, involving the title to about 45 lots in the city of Lubbock. Appellees answered by a plea of not guilty, and specially that they were innocent purchasers for valuable consideration, without notice. The case was tried before the court without a jury, and judgment rendered, giving the appellee Freize 27/4o and to appellee Benson V40 of the land in controversy. From this judgment appellant has appealed, and by various assignments, not necessary to be here consecutively considered, contends, first, that the court erred in rendering judgment for appellees, claiming that they were not bona fide purchasers for valuable consideration without notice, as they claimed title under pure quitclaim deeds, executed by Rufus Bedford, under whom appellant also claims, said alleged quitclaim deeds having been executed long after the title of Rufus Bedford had passed to appellant by previous conveyances; second, that the court erred in rendering judgment for appellee Freize for 27/4o of the lots in controversy, and refusing to render judgment in behalf of appellant therefor, contending that said Freize was not an innocent purchaser on the ground that there is no evidence that he paid a valuable consideration, and that the only consideration paid by him was the surrender and cancellation of two notes held by him against his grantor H. E. Keys, and further contends that said appellee was not an innocent purchaser, because there was no evidence that said defendant paid a valuable consideration before notice of appellant’s title. Appellant also contends that the court erred in rendering judgment as stated for appellee Benson, to the effect that he was not a bona fide purchaser for a valuable consideration without notice as against the title previously conveyed to appellant, claiming that the evidence shows that said appellee’s vendor, H. E. Keys, agreed to give said appellee only a quitclaim deed; also that said appellee Benson did not pay a valuable consideration. Appellant also contends that the judgment giving to appellee Freize 2 7/4 0 of the lots in controversy, and to Benson 0/40 thereof, was error, in that the evidence showed that said appellees obligated themselves to pay the back taxes on the lots in controversy as a part of the consideration expressed and agreed upon in the conveyance to them of March 21, 1907; that the lots were delinquent from 1891 to 1906, and the taxes then amounted to $100 for % interest in said lots besides interest, penalty, and costs, and that the same were never paid by appellees so as to relieve their grantor from liability thereon, and that said lots were not worth exceeding $10 each, and that appellees are therefore not entitled to recover a greater portion in said lots than they had paid for. It appears from the evidence that appellant claims title to the lots in controversy under the following chain of title, viz.: First, warranty deed from Rufus Bedford to H. E. Keys, of date July 26, 1894; second, warranty deed from H. E. Keys to J. H. Cobh, of date July 18, 1895; third, warranty deed from J. H. Cobb to appellant of date March 8, 1897, all of which of said conveyances were filed for record in Lubbock county, Tex., May 5,1911. Appellant also introduced in evidence deed from J. H. Cobb to appellant, conveying the lots in controversy without clause of warranty of date May 1, 1911, and filed for record May 16, 1911. Appel-lees introduced in evidence a deed of special warranty, executed by the said H. E. Keys, conveying to appellees the property in controversy, in the proportion stated in the judgment, of date March 21, 1907, and recorded March 27, 1907; also a quitclaim deed from Rufus Bedford to said H. E. Keys, of date September 26, 1904, and recorded March 27, 1907. Appellant also introduced in evidence a quitclaim deed from Rufus Bedford to ap-pellee Benson, and one from M. G. Abernathy, of date September 30, 1904, and recorded the same date, also a quitclaim deed from M. C. Abernathy to W. E. Freize et al. of date June 22, 1909, and recorded the same date, conveying all of his right and interest to the lots in controversy to the grantees therein named.

[1 ] It will thus be seen that all of the conveyances under which appellees or either of them hold, with the exception of the warranty deed of 1894 (from Rufus Bedford to H. E. Keys), were recorded prior to the registration of appellant’s chain of title, while junior to the same in date of execution, except as to the deed from Cobb to appellant of date May 1, '1911, and that H. E. Keys is the common source of title as to both appellant and appellees. We therefore conclude that there is no merit in the contention of appellant to the effect that appellees cannot be innocent purchasers because they claim under quitclaim deeds executed by Rufus Bedford, from whom the said H. E. Keys acquired title, as the quitclaim deeds thus objected to lie back of the common source under which all parties to this controversy claim. In other words, we perceive no valid reason in law why appellees should not be here permitted to deraign title and defend in this suit, both under the warranty deed of 1894 from Rufus Bedford to appellees’ vendor, H. E. Keys, and under the quitclaim deeds referred to or under either or both such chains of title. In this connection, it is further to be observed that, considering the recitals in the deed from Rufus Bedford to H. E. Keys of date September 26, 1904, it is doubtful at least whether this deed should be construed strictly as a quitclaim deed, said deed reciting that, “This deed is made to take the place and in lieu of one certain deed to the above lots, made by me to the said H. E. Keys, on or about the 24th day of February, 1896, which deed has been lost or misplaced and never recorded;” it fairly appearing from the evidence that the only other deed made by Bedford to Keys was the warranty deed of date July 26, 1894, and that this was the deed intended by said reference. It is also to be noted that, while the grantor in the deed in question in the granting clause of said deed, bargains, sells, releases, and quitclaims all his right, title, and interest in the lots in controversy, specifically set out, the habendum clause of said deed is as follows: “To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in any way belonging, unto the said W. E. Freize and W. D. Benson, their heirs and assigns forever; and we do hereby bind ourselves, our heirs, executors and administrators, to warrant and forever defend all and singular the said premises unto the said W. E. Freize and W. D. Benson, their heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under me.” Abernathy v. Stone, 81 Tex. 430, 16 S. W. 1102; Garrett v. Christopher, 74 Tex. 453, 12 S. W. 67, 15 Am. St. Rep. 850; Dougal v. Fryer, 3 Mo. 40, 22 Am. Dec. 458; Stanley v. Hamilton, 33 S. W. 602. We are further of the opinion, and so find from the evidence, that at the time appellees acquired their interest in the property in controversy they had no notice, either actual or constructive, of the unrecorded chain of title, under which appellant claims. This leaves for our determination only the further question as to whether the appellees or either of them paid a valuable consideration within contemplation of the statute for their respective interests in said property, and, as the consideration claimed by each is somewhat different, this phase of the ease will be considered separately as to each of the appellees.

[2] While indulging every legitimate inference from the evidence in support of the judgment rendered by the trial court and upon a thorough examination of the evidence, we are constrained to hold and so find, as to the appellee Freize, that the consideration paid by him is not such as will support his claim to the property against the prior unrecorded title acquired by appellant. It appears from the evidence that the consideration given by him for the conveyance to him by Keys, under whom he holds, was,first, surrender and cancellation of a preexisting indebtedness, evidenced by unsecured promissory notes held by him against said Keys, and, second, his assumption of certain unpaid back taxes due from his vendor on the property conveyed. We further find from the evidence that said back taxes referred to, the same being part of the consideration, for the conveyance to both appellees by the said Keys, have never in fact been paid by either of appellees or any one else. and we do not understand appellees to contend that either the mere assumption of the payment of these taxes or their payment after notice of appellant’s title would constitute a valuable consideration. Appellee Ereize in his able brief in this case earnestly insists that, because of the laches of appellant in asserting or giving notice of his title, appellee had been lured into permitting the notes evidencing the indebtedness from Keys to himself to become barred by limitation, and that appellee, having thus lost his right to recover on the notes the indebtedness evidenced by them, had parted with something of value as a consideration for his deed, and, if appellant is allowed to recover without compensating him therefor, he would be left in a worse condition than before he gave up his said notes, and that the cancellation and surrender of them should here be considered a valuable consideration, and in support of this contention cites us to the case of Alstin v. Cundiff, 52 Tex. 453, and to the ease of Bonner v. Grigsby, 84 Tex. 330, 19 S. W. 512, 31 Am. St. Rep. 48, and the case of Dunlap et al. v. Green, 60 Fed. 242, 8 C. C. A. 600. It occurs to us, however, that a sufficient reply to this contention is that in voluntarily giving the notes and the debt evidenced by them as a consideration for the deed to the land appellee Freize surrendered his right to recover upon the notes in exchange for the remedy afforded him by law, which is the right to recover upon the breach of warranty contained in his deed upon the failure of his title. Nor do we think that the possible fact that he might realize less or nothing by pursuing this remedy than he would have realized by holding his notes or suing on the same would authorize us to here hold that the pre-existing indebtedness in this case constituted a valuable consideration, such as would allow his junior claim to prevail against the .unrecorded prior title. It is to be further noted in connection with this contention that, while there is no controversy . oyer the virtual cancellation and surrender of this debt as a consideration for the conveyance to appellee Freize, there is no evidence in the record showing that at the time of the surrender of said notes that the said Keys was solvent and that the notes had value, and, if so, what their value was, and it further occurs to us, as appellee has invoked a consideration of the equities involved in this transaction, that before this pre-existing indebtedness can be here held a valuable consideration, or the appellant required to account for the value of such consideration, the appellee Freize should be required to show, what such value was in order to ascertain whether in fact he is placed in a worse position or not. It may be that in this instance the transaction amounted to an exchange of a worthless debt for a worthless title, and that appellee Freize, upon the failure of title conveyed to the lots, is in no worse condition than he was before he surrendered the notes. We therefore conclude that the only consideration shown to have been parted with by the appellee Freize, being the cancellation of a pre-existing indebtedness, and that by the great weight of authority in this state such consideration is not deemed valuable in contemplation of the statute, that the trial court erred in rendering judgment in favor of said appellee Freize for any portion of said lots, and that said judgment in respect to said appellee should be here reversed and rendered in favor of appellant, which is accordingly done. Overstreet v. Manning, 67 Tex. 661, 4 S. W. 248; Scoggin v. Mason, 46 Tex. Civ. App. 480, 103 S. W. 835; Webb v. Burney, 70 Tex. 325, 7 S. W. S41; Buckley v. Runge, 136 S. W. 533; Caviness v. Black, 33 S. W. 712; Swenson v. Seale, 28 S. W. 146; Shoe Co. v. Lyons, 6 Tex. Civ. App. 633, 25 S. W. 805; Huff v. Maroney, 23 Tex. Civ. App. 465, 56 S. W. 755; McKamey v. Thorp, 61 Tex. 652; Western Gro. Co. v. Alleman, 81 Kan. 543, 106 Pac. 460, 27 L. R. A. (N. S.) 620, 135 Am. St. Rep. 398.

[3] As to the appellee Benson, it appears from the evidence that the conveyance to him' of his interest in the lots in question by Keys was in pursuance of a contract for legal services to be rendered to said Keys in the matter of perfecting said Keys’ title of record to the 49 lots referred to in representing said Keys in the matter of his said claim to said lots, and that said services were duly rendered by said Benson at the cost of some work and expense to himself. We therefore conclude that as to him, notwithstanding his failure to pay the back taxes shown to have been stipulated for in the deed from Keys to Benson, he, the said Benson, acquired his title to the property without notice as to appellant’s unrecorded title and for valuable consideration, and is shown by the evidence in this case to be an innocent purchaser of the interest in the lots awarded him,. and that in that respect there is no error in the judgment appealed from which' is here affirmed as to said appellee Benson, and, as heretofore stated, said judgment is here re-.versed and rendered as to appellee Freize?- and it is so ordered.