(after stating the facts as above). After instructing the jury that the burden was on appellees to show that they were induced to execute the deed to Glueck by fraud practiced on them, the trial court further instructed the jury that if the execution of that deed was so procured the burden was on Sperry to show that “he purchased the property in good faith, and without notice of such fraud.” Sperry excepted to the instruction so far as it placed the burden of proof on him as stated, and insists here that the action of the court in overruling his exception was error which entitled hirp to a reversal of the judgment.
The legal title to the Paris land was in ap-pellee Caroline Moody it seems. The effect of the deed made by her and appellee Prank Moody to Glueck, and the deed made by Glueck to Sperry, was to pass that title to Sperry. The right (if any) of appellees to the land after they made the deed to Glueck was an equitable one. 27 R. C. L. 693. The rule in this state, as we understand it, is that, in a contest between the owner of such a right and the holder of the legal title, the burden is on the former to prove that the latter had notice of the equitable right at the time he acquired the legal title. Rand v. Davis (Tex. Civ. App.) 27 S. W. 939; Hopkins v. Walters (Tex. Civ. App.) 224 S. W. 516; Laffare v. Knight (Tex. Civ. App.) 101 S. W. 1034; McAlpine v. Burnett, 23 Tex. 649; Catrell v. Brown Hardware Co. (Tex. Civ. App.) 86 S. W. 1045; Phillips v. Webb (Tex. Civ. App.) 40 S. W. 1011; Wallis v. Dehart (Tex. Civ. App.) 108 S. W. 180; Meador v. Hines (Tex. Civ. App.) 165 S. W. 915; Wootton v. Thompson, 119 S. W. 117, 55 Tex. Civ. App. 583; Saunders v. Isbell, 24 S. W. 307, 5 Tex. Civ. App. 513; Hill v. Moore, 62 Tex. 610; Simkins’ Equity, 667.
Appellees are of the opinion, it seems, that the rule is to the contrary of the'way it is stated above, and they cite several cases as authority supporting their view. But we think only one of the number cited, to wit, Low v. Gray, 61 Tex. Civ. App. 487, 130 S. W. 270, does support it. In that case, as here, it seems, the plaintiff was asserting an equitable right against holders of the legal title, and the court held that the burden was on the latter to prove that they were without notice of the plaintiff’s right at the time they acquired such title. The case seems to be in conflict with eases mentioned above, and to have never been followed or cited, except in Morrison v. Cotton (Tex. Civ. App.) 152 S. W. 866, where it is referred to as authority for the statement that:
“It is settled law in this state that before a vendee can recover as an innocent purchaser he must prove, independent of the consideration recited in the deed, that he paid value for the land, and that he took the same without notice of the fraud, if any.”
We understand the rule to be as stated where the contest is between the holder of the legal title under an unrecorded deed, and a subsequent purchaser from the same vendor, but it is subject to an exception, which the court declared, in Peterson v. McCauley, 25 S. W. 826, to be “as well-established as the rule itself,” and which exception is stated as follows:
“Where the subsequent purchaser gets the legal title, and another party, holding an equitable title, seeks to oust Mm, the burden of proof rests on the holder of such equity to show that the subsequent purchaser had notice, actual or constructive, of his equitable title, or such facts as would put a prudent man on inquiry.”
Appellees insist, however, that if the burden of proof was on them, the erroneous instruction to the contrary should not operate to reverse the judgment, because, they say, it was harmless, in view of the fact that it appeared that they remained in actual possession of the land, using it as their homestead after-they made the deed to Glueck, and were holding such possession thereof -at the time Glueck made the deed to Sperry, and at the time London Moody entered into the contract with Sperry. The effect of such possession, they say, as a matter of law, was to charge Sperry and London Moody with notice of their right to the land. There is no doubt such possession put Sperry and London Moody on inquiry as to appellees’ right. But Sperry testified that he made inquiry; that he looked to the deed records of Lamar county, and found there duly recorded a deed from appellees to Glueck. It seems, therefore, that the rule recognized in Eylar v. Eylar, 60 Tex. 315, that: “A purchaser (quoting from the reporter’s syllabus) from a vendee whose vendor remains in possession is not bound to inquire further as to the title, when he finds on record in the county a deed from such vendor conveying title, properly proved up and registered,” is applicable. In Mason v. Olds (Tex. Civ. App.) 198 S. W. 1040, cited by appellees as supporting their contention, the purchaser put on inquiry as Sperry was made no examination of the deed records; and Chamberlain v. Trammel, 61 Tex. Civ. App. 650, 131 S. W. 227, another case cited by appellees, in its facts was also unlike Eylar v. Eylar.
As we think the instruction complained of was erroneous, and materially so on the rec*274ord as presented here, we cannot do otherwise than reverse the judgment.
Other . contentions presented by assignments in appellant’s brief, to the effect that findings made by the jury were without support in the testimony, are overruled.
The judgment is reversed, and the cause is remanded for a new trial.