We have duly considered appellants' motion for a new hearing, and if we reform the statement of facts, and exclude certain portions thereof, as appellants insist in their briefs should be done, and if we concede that there was no issue of fraud raised by the pleadings upon the trial of the case in the lower court, and that appellee is not an innocent purchaser, still we are of the opinion that there is no error in the judgment of affirmance rendered by this court.
The evidence shows clearly, that the judgment in favor of the appellee against appellant Thomas J. Russell was duly recorded in the office of the county clerk of Jefferson County before the deed from the latter to his wife was registered, and there is no evidence that appellee had notice of such deed, or of any claim to the land by Mrs. Russell, before his judgment was recorded. Under such circumstances the title of the purchaser at the execution sale, although he then had notice that Mrs. Russell was the owner of the land, must be held paramount to hers, notwithstanding the fact that the premises may have been conveyed to her for a valuable consideration, prior to the recording of the judgment against her husband in favor of appellee. This is so by the operation of the statute, which declares all unregistered deeds of conveyance void as to subsequent purchasers and creditors. Wallace v. Campbell, 54 Tex. 90; Grimes v. Hobson,46 Tex. 418; Borden v. McRae, 46 Tex. 396 [46 Tex. 396]; Grace v. Wade, 45 Tex. 528; Ayres v. Duprey, 27 Tex. 593.
The conclusion of the court, that the premises in controversy were no part of the homestead of appellants, is, we think, fully sustained by the evidence; and the title of Mrs. Russell being subject to the appellee's judgment lien, it becomes immaterial whether the deed to Mrs. Russell was or was not executed for a valuable consideration, or whether it was or was not executed with the intent to hinder or delay his creditors by the vendor, with the knowledge of such intent by the vendee.
The case of Ross v. Kornrumpf, 64 Tex. 390, to which appellants refer us in support of their motion, is not in conflict with the cases cited above. Ross v. Kornrumpf, like McKamey v. Thorp, 61 Tex. 648; Parker v. Coop,60 Tex. 111; Senter Co. v. Lambeth, 59 Tex. 260 [59 Tex. 260], and Blankenship v. Douglas, 26 Tex. 229 [26 Tex. 229], holds, that the statutes of registration do not apply to equitable titles such as are derived from resulting trusts, as where land is purchased with the separate funds of the wife and the deed of conveyance is made to the husband, or when the deed, though made to the wife, does not by its terms show that it is made to her in her separate right. When such is the case, the creditor, by recording his judgment against the husband, acquires a lien against the apparent *Page 65 title of the husband; but such lien may be avoided by the wife upon giving notice of her title to the creditor before sale of the land.
But in this case, the property in controversy was owned by Thomas J. Russell before his marriage with the appellant Louise H. Russell, and the latter acquired the legal title to the property by direct conveyance from her husband; and her deed therefore must be considered as within the operation of the statutes of registration.
Where the title is one which rests in equity, as we have seen, it is excepted from the operation of the registration laws, for the very obvious reason that such title, from its very nature, can not be registered. But where a married woman acquires the legal title to the land, although the title be through conveyance from her husband, she must register her deed, otherwise it, like any unregistered deed from her husband to a stranger, will be void as to subsequent purchasers or creditors without notice.
The appellant Thomas J. Russell has thought proper to assail the honorable court that tried this cause, and to charge that its judgment was inspired by the malice of the judge. The judge of every court, until otherwise determined in the mode prescribed by the law of the land, must be presumed to be incapable of intentional wrong or injustice; and he must be treated with courtesy and deference by litigants and their counsel. This is essential for the peaceable and orderly administration of justice. We must therefore condemn the conduct of the appellant for the language applied in his brief to the judge of the lower court, and place upon it the seal of reprobation. For similar language applied by counsel in his brief to a judge of the District Court, as shown in the case of Smith v. The State,5 Tex. 578, proceedings for contempt were instituted both in the District and Supreme Court; and in the District Court the offending counsel was fined and his license revoked. For the present, however, we refrain from ordering an attachment for the appellant. But in justice to him who tried the case in the court below, we are constrained to say, that not one of his conclusions of fact is without some evidence at least to support it; and while it is true that under the pleadings there was no issue of fraud in the case, yet evidence of fraud was admitted, without objection by the appellants, which fully sustained the conclusion of the court, that the deed from appellant Thomas J. Russell to his wife was made with the intent to hinder and delay his creditors. The motion is overruled and a new hearing refused.
Rehearing refused. *Page 66