On Appellants’ Motion for Rehearing.
Wé 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.
[7] 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 pint 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 he 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.
[8] 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.