On Motion for Rehearing.
Appellants assert, in their motion for rehearing, that this court was in error in saying that the attorneys for Pipkin, several years before the trial of this cause, not only knew of Ware’s claim, but the claim of the source of same. It is true that there is a statement that the fact of a lost deed was not known until about six months previous to the trial of the cause; however, there is this testimony, which at least is indicative of knowledge of Ware’s claim through Hall and Moseley:
“I can’t be positive when I examined the records and found that Ware was claiming under this other chain of title [the chain from Moseley], My best recollection is that I made no examination until we got ready to file the suit, and that was the first time I knew of the other chain of title under which Ware claims.”
This suit was instituted by appellants September 8,1910. There is in this record the following testimony, which we will admit is rather hard to construe as to its meaning and effect as to the question of notice, and likewise as bearing upon the question of due inquiry:
“My impression is that I looked at the record to see if Pipkin had title, and found that deed from Mr. Pipkin regularly recorded from him on down; but I am not sure when I ascertained that — whether before or afterward.”
[5] As to the question of notice, based upon the doctrine of inquiry, the appellants further say, in effect, that as to any discovery of a conveyance from Pipkin to Moseley, though they may have known, at the time they accepted the deed from Pipkin, that Ware claimed the land, any investigation they would have made would have been fruitless. We, of course, admit the rule that if a purchaser has information and pursues a proper inquiry,, and ascertains facts which will satisfy a prudent man that there is no defect of title, he can still be an innocent purchaser (Bacon v. O'Connor, 25 Tex. 213); and it is likewise the rule, of course, that though inquiry has not been made, but if it had been and notice of defect would not have been discovered, the result is the same (Bowles v. Belt, 159 S. W. 887).
[6] Viewing it as the jury could have viewed it, it is at least inferable that the appellants knew that Moseley deeded to Hall and Hall to R. C. Ware, when'they accepted the deed from Pipkin; they knew that Ware claimed the land. There is a condition in this record ■which we did not analyze in detail in the original opinion, which, it seems to us, is overlooked by appellants. Viewing the testimony, and specially that recited herein, the jury could have found actual knowledge to appellants of the Moseley and Hall deeds; and certainly, as stated, they are presumptively charged with the knowledge of these conveyances on account of their notice of Ware’s claim. It may be they could not have discovered, by inquiry of Moseley, from whom he procured any title, but, having knowledge of such salient facts sufficient to excite inquiry, could they have discovered such information from Pipkin, their own grantor? “If a person has sufficient notice to place him upon inquiry, and does not take advantage of the means at his command to learn the facts, he must be considered as knowing the facts.” Devlin on Deeds (3dAEd.) vol. 2, § 743A, p. 1374. Appellants m&y say, of course, that we could not be expected to inquire of our own grantor and of our own client committing his claim to us for suit whether he had previously conveyed the land; neither would we be expected to go any further than the record. It is the law that one — ■
*812“is not required to institute inquiries as to the existence of rights of which there is no evidence upon the records, unless there he some fact whioh he hnows, or should Imow, sufficient to eacite inquiry in the minds of prudent persons.” Paris Grocery Co. v. Burks, 101 Tex. 111, 105 S. W. 175. (The emphasis is ours.)
The record of acknowledgment by Pipkin to Moseley of a deed purporting to convey this land is undisputed. Appellants concede in their motion that “article 3697, R. S. provides that the record of acknowledgments is admissible as evidence of the contents thereof” (though denying as to the condition here that the acknowledgment is any proof of delivery). The fact of the execution of a deed to Moseley by H. J. Pipkin, irrespective of delivery, is practically undisputed, though, of course, appellants may not concede the inference.
This suit has been pending since September, 1910, without any denial by Pipkin of the execution, or delivery, of such, a deed, no statement whatever by him, at the time he committed the business to his attorneys to recover this land, that at said time he did not remember any such instrument. What would he have answered appellants if they had inquired? which We think clearly it was their duty, having the knowledge of the other claim, the same as it would have been the duty of any other vendee attempting to obtain title to the property.
[7] Appellants further say, with reference to the fact of nonelaim by Pipkin:
“We have never understood that a person could lose title to property on account of non-claiin and nonpayment of taxes, except by limitation.”
Nonelaim is, however, significant testimony of a grant, when connected' with other circumstances, and has always been so considered. Davidson v. Wallingford, 88 Tex. 625, 32 S. W. 1030; Huff v. Crawford, 89 Tex. 220-221; Stafford v. Kreinhop, 63 S. W. 166.
The motion for rehearing is overruled.