On Motion for Rehearing.
It is very earnestly insisted in behalf of appellant that we erred in indicating that, at best, John L. Poulter had but an equity upon which the abstract of the judgment in favor of the West Publishing Company could operate. It is insisted upon the authority of such eases as Hirshfeld v. Howard, 60 S. W. 806, that an express trust was created by virtue of the agreement between Gasso-way and John L. Poulter, and that the effect was to vest in John E. Poulter the beneficial interest in the real estate to which that agreement related, and upon which, there*729fore, the abstract of judgment operated. That such an agreement under other circumstances would have the effect contended for will not be disputed, but it is to be remembered, as observed in our original opinion, that John L. Poulter, at the time of this agreement, unlike the circumstances of numerous cases cited in behalf of appellant, had no interest whatever in the land in controversy at the time of the agreement with Gassoway, and we think it clear from the evidence that he at no time complied with an essential condition of title in him by the payment to Gassoway of the sum Gassoway paid at the trustee’s sale, as agreed upon. John L. Poulter failed to testify to any such payment. Gassoway distinctly denied it, and G. W. Poulter testified to the effect that the sums paid by him to Gassoway were not paid for the benefit of John L. Poulter. Under such circumstances, we continue to think that the case of I-Ioffman v. Buchanan, 5? Tex. Civ. App. 368, 123 S. W. 168, is more nearly applicable to the case under consideration than are the cases cited in behalf of appellant.
The foregoing conclusion, however, but leads us to the further contentions in behalf of appellant that Marti at the time of his purchase had both actual and constructive notice of the asserted title in John Ij. Poulter. Proof of notice to Marti, either actual or constructive, was necessary in order to defeat his title, even though it should be conceded that John L. Poulter, in fact, had an equitable title to which the abstracted judgment under which appellant claims could attach. IVe have, however, carefully examined the record, and find no proof of actual notice. Marti, in his testimony expressly denied any knowledge whatever of the various deeds to John L. Poulter, and also denied knowledge of the agreement between John L. Poulter and Gassoway, testifying that he had heard of the suit by G. W. Poulter against Gassoway, but pai<l no attention to it for the reason that at the time he was not contemplating the purchase of the land. And no witness whose testimony we have examined testified that Marti had knowledge of the claim by John L. Poulter to the land in controversy at that time. Nor do we think notice constructively was shown. At the time of Marti’s purchase the lis pendens notice was not operative as to Marti; and, while the lis pendens notice was shown to have been included in the abstract of title delivered to Marti, it conveyed no substantial information other than that G. W. Poulter had instituted his suit against Gassoway for the land. The written agreement between Gass-oway and John L. Poulter was not embodied in the lis pendens notice, so far as the record shows. The fact that an abstract of title was delivered to Blarti before his purchase is relied upon. But the abstract is not set out in the record before us, and it does not appear from any testimony called to our attention that the written agreement between Gassoway and John L. Poulter, or any of the deeds to John L. Poulter, was included, in the-abstract. Blarti testified, without contradiction, that while he received the abstract he did not himself examine it, but referred to others the matter of its sufficiency, and was assured by the agent who negotiated the sale, and by the lawyer to whom the abstract was referred for examination, and by John L. Boulter himself, that the title was good. So that we fail to find any circumstances which placed Marti, his agent or attorney upon further inquiry.
[7] The deeds in this case from Gassoway to G. W. Poulter and from the latter to ap-pellee Marti are special warranty deeds. That is Gassoway and G. W. Poulter severally warranted the title “by, through, or under me, but not otherwise.” But appellant insists that the deeds are in effect but quitclaim deeds, and that therefore Blarti took the land subject, as a matter of law, to the equity of John L. Poulter. In other words, that under this form of warranty appellee could not be an innocent purchaser for value, notwithstanding Marti’s want of actual knowledge, and notwithstanding the absence of circumstances sufficient to put him upon inquiry. • •
In support of this contention, appellant cites the cases of Hudman v. Henderson, 58 Tex. Civ. App. 358, 124 S. W. 186, Richardson v. Levi, 67 Tex. 364, 3 S. W. 444, and other cases of similar import.
We deem it unnecessary to discuss the proposition stated at length. We think it sufficient to say that by an examination of the cases cited it will be found that they were cases in which the grantors did not undertake in the granting clause to convey title to the land. The undertaking was merely to convey whatever of title or interest the grantor may have had. And it was held, and rightly we think, in such eases, the grantee was affected with notice of any equity to which the land was subject. In the case before us, however, the statement of facts show that both the deeds from Gasso-way to G. W. Poulter and from G. W. Poulter to Jost Marti purported “to convey the land in controversy in this suit.” Under such form of conveyance it is very plain, even under the authorities cited by appellant, that a grantee may become a purchaser unaffected by secret and undisclosed equities. To illustrate, in the case of juichardson v. Levi, supra, in speaking of the warranty clause to deeds, our Supreme Court said:
“This clause forms no part of the conveyance. When the instrument in which it is contained purports to make a full and perfect conveyance of the land described in it, this clause does not strengthen or enlarge the title conveyed. It is a separate contract to which the grantee agrees to pay damages if the title fails; but *730it does not make the title itself any better, it accompanies a deed which conveys only the right and title of the grantor, it evidences a confidence of the grantor in his title to the land, and a want of like confidence on the part of the grantee in such title. But an unrestricted conveyance of the property for a fair consideration shows that the purchaser supposes that he is getting the whole estate, though he takes no separate contract for the return of the purchase money in case he does not. Judge Story said in the case of Flagg v. Mann, 2 Sum. 562 [Fed. Cas. No. 4847] that he was not aware that any covenant of general warranty had ever been held necessary to entitle the vendee to make the defense of innocent purchaser, when he bought the property and not the interest of the grantor. If he gives a full price for an unquestioned and unquestionable fee simple, the absence of covenants of general warrant ought not to take away from him the common protection. This affords proof that he had no suspicion of the title not being perfect, and he was ‘on equal equity with any person claiming under an outstanding and unknown trust; and, if so, the legal title combined with the equity ought not to be disturbed.’ ” If
Other cases of like effect might be cited, but we conclude that enough has been said, and that, for the reasons indicated, the motion for rehearing should be overruled.