Opinion. — We are of opinion that the motion for rehearing should be overruled.
On the question of constructive notice by registration of the Hollon deed, which presents the most difficult question, to us, in the case, we wish in support of our former conclusion to add the following: The statute (Rev. Stats., art. 4639) authorizes the record of "all deeds, mortgages, conveyances, deeds of trust, bonds for title, covenants, defeasances or other instruments of writing concerning any lands or tenements or goods and chattels, or movable property of any description."
The deed in question is an "instrument in writing concerning lands" and the statute authorized its registration, and when recorded it was notice to creditors of and subsequent purchasers from the vendor. It vested in the vendor a present equitable right to such title as the vendor might subsequently acquire by inheritance from his sister. The conveyance contained covenants of warranty by which his subsequently acquired title inured to the vendee. The covenant of title was binding upon the grantor as to the title subsequently cast upon him, and also bound his privies in estate, in blood and in law. He and his privies would be estopped from denying his right and power to sell at the date of the deed, and from denying the investiture of title in the vendee when it became perfect in the vendor. Digman v. McCollum, 47 Mo., 373; Tefft v. Munson, 57 N.Y. 97; Work v. Welland, 13 N.H., 389; 5 N.H. 533; Somer v. Skinner, 3 Pick., 52; 3 Barb. Ch., 528; Pike v. Galvin, 29 Me. 183; Lessee of Buckingham v. Hanna, 2 O. St., 551. The instant the title was cast upon the vendor Hollon it vested in the vendee by virtue of the warranty. The conveyance was binding upon the vendor and his privies, subsequent purchasers and creditors with notice, which would be effected by the registration of the deed. James v. Sikens,25 Vt. 635; 3 Pick., 51; Doyle v. Peerless Petroleum Co., 44 Bar. N Y, 239; 1 Johns. Cases, 81.
In Boswell v. Buckingham's Extrs., 3 Leigh (Va.), which holds that where a vendor with equitable estate only in the lands conveying the same without warranty in trust to secure debts, the deed being recorded, afterwards acquiring the legal title and selling to another by warranty deed, the last purchaser should be protected, and that the record of the deed of trust was not notice to the last purchaser under the recording acts. Evidently this decision must rest upon the ground that there was no warranty in the deed of trust passing the legal title, when acquired, to the trustee. A covenant of warranty in a conveyance by one who has an expectant estate in lands binds the vendor at the time of the covenant, and he cannot hold the land by an after-acquired title — the fulfillment of the expectancy — against the warranty — nor can his privies in estate, in blood or in law. If then the conveyance is binding at the time it is executed it is a written contract concerning lands, subject to registration and its consequences. Heitzel v. Barber, 69 N.Y. 1; White v. Patten, 24 Pick., 324.
We do not think that the duty of search for incumbrance or deed *Page 112 commences at the time of inheritance of title in the vendor, as was held in Calvin v. Chapman, 52 Pa., when the prior deed was with warranty and binding upon the vendor and his privies. It may be troublesome to search the records, but that would not excuse a want of search when the statute authorized the recording of the conveyance. The statute authorizing its registration, the consequences of registration must follow in favor of the vendee who is vigilant and complies with the law.
The motion for a rehearing is overruled.
Delivered June 17, 1896.
A writ of error was granted by the Supreme Court, but on final hearing the judgment was affirmed in an opinion reported in90 Tex. 427.