On Rehearing. At the last term this case was reversed and rendered in favor of appellants. Near the end of the term appellees' motion for rehearing was granted, and the case carried over to this term in order that it might be given further consideration. This has been done, and the conclusion reached that the original disposition made was correct, but that some rulings made in the original opinion are not necessary to the decision. We will therefore in this opinion, restate the grounds of our decision.
The tract of land in controversy was the community property of J. M. Sullivan and his wife, Susan, the legal title being vested in the husband. By deed dated and acknowledged December 10, 1891, and filed for record March 5, 1892, J. M. Sullivan conveyed his interest in the land to his wife. This deed is quoted in full in the original opinion. J. M. Sullivan died intestate in September, 1892. The plaintiffs are his heirs at law, and upon the trial recovered an undivided one-half interest in the land. The appellants claim under Mrs. Sullivan as shown in the original opinion.
In January, 1892, the tract of land was sold by the sheriff as the property of J. M. Sullivan to R. H. Parker, under alias execution levied December 10, 1891, and issued upon a judgment against J. M. Sullivan in the justice court of Taylor county. The record is silent as to the priority of the execution of the deed or of the levy.
By deed dated March 29, 1892, and recorded March 81, 1892, R. H. Parker conveyed the land to Susan Sullivan for the consideration of $75. There is nothing upon the face of this deed nor any extrinsic evidence to show that the property thus conveyed became her separate estate. The legal presumption, therefore, is that it was conveyed to the community.
The theory of the appellees is that the superior title to the land passed to R. H. Parker under the execution sale, and that this title passed by Parker's deed to the community estate of J. M. and Susan Sullivan, and upon the death of J. M. Sullivan his one-half interest descended to the plaintiffs.
The appellants claim that the superior title did not pass to Parker under the execution sale, because it was not shown by plaintiffs that the execution was levied prior to the execution of Sullivan's deed to his wife, nor was it shown that Parker purchased at the sheriff's sale for value and without notice of the deed. In this there is no merit, for, assuming that the deed was executed prior to the levy, the burden rested upon appellants, as claimants under an unrecorded deed, to show that Parker had notice of the deed at the time the levy was made. Turner v. Cochran, 94 Tex. 480, 61 S.W. 923; Barnett v. Squyres, 93 Tex. 193,54 S.W. 241, 77 Am. St. Rep. 854; Newman v. Phalen (Tex.Civ.App.)214 S.W. 958; Whitaker v. Farris, 45 Tex. Civ. App. 378, 101 S.W. 456.
It is further contended by appellants that the conveyance from Sullivan to his wife conveyed the land itself, and that any title subsequently acquired by him under the Parker deed passed to Mrs. Sullivan as her separate property under the rule relating to after-acquired title. In this connection it is earnestly insisted by appellees that the deed from Sullivan to his wife was a mere quitclaim and that the rule invoked therefore has no application. The question is not free from doubt, but upon careful consideration we adhere to the conclusion reached upon the original consideration of the case that under the authorities the deed is not a mere quitclaim, but upon its face conveyed the land itself rather than the chance of title. Cook v. Smith, 107 Tex. 119, 174 S.W. 1094,3 A.L.R. 940; Laughlin v. Tips, 8 Tex. Civ. App. 649, 28 S.W. 551; Lewis v. Terrell, 7 Tex. Civ. App. 314, 26 S.W. 754.
This being the nature of the instrument, we are of the opinion that any title acquired by J. M. Sullivan under the Parker deed inured to his wife in whom he had previously attempted to vest title.
In this connection it is argued by appellees that, if the conveyance to Parker had been a voluntary one by Sullivan and wife, and Parker had thereafter reconveyed to Mrs. Sullivan, the doctrine of an after-acquired title would have no application, and since the sheriff's deed conveyed to Parker the community estate of both Sullivan and wife, that the same rule would apply as in the case of a voluntary conveyance. To this view we cannot assent. The deed from Sullivan to his wife was valid as between them, and undertook to vest title in her as her separate estate. The vesting of this title in her was defeated by process against the husband; the sale to Parker was involuntary. *Page 398 This being the case, we are of the opinion that the after-acquired title of J. M. Sullivan under the Parker deed should be considered as inuring to the benefit of the vendee, thereby perfecting in her as her separate property the defective title which he had previously conveyed to her. The case is altogether different from what it would have been had the Sullivans voluntarily conveyed to Parker.
The trial court in effect found that the deed from Sullivan to his wife was made in fraud of the creditor Parker, and appellees assert that, in view of this finding, the deed was wholly void. But under the well-settled rule it was valid as between Sullivan and wife (Stephens v. Adair, 82 Tex. 214, 18 S.W. 102), and as between the parties vested, or rather attempted to vest, title in the wife as her separate property (Lewis v. Simon, 72 Tex. 470, 10 S.W. 554). The delay in recording the deed did not affect its validity as between the parties thereto.
As to the contention by appellees that the appellant mortgage company is estopped from claiming the land, this record is insufficient to present any issue of title by estoppel in appellees.
The ruling made renders it unnecessary to consider other questions presented by appellants.
For the reason indicated, the judgment of the court below is reversed, and here rendered for appellants.