(after stating the facts as above). 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.
[1,2] 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. Por 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.
[3] 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 reeonveyed 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.
[4] Aside from the recital in the deed to him from Van Meter, there was no testimony showing or tending to show that Huntington *599paid anything for the land. To entitle ap-pellees 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. E. 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 Eliza-beth 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.