Bacon v. O'Connor

25 Tex. 213

• Court: Texas Supreme Court
• Decided: July 1, 1860
• Status: Published

Opinion

Bell, J.

It is shown by the record that John O'Connor purchased from the estate of one Fessenden, a tract of land situated in Colorado county, and that the appellee, Cornelius O’Connor, became the surety of John O’Connor upon a promissory note executed to the administrator of Fessenden’s estate, for the purchase money. This debt to Fessenden’s estate became due on the 4th of April, 1855; suit was commenced by Fessenden’s administrator, against John O’Connor and Cornelius O’Connor, for the recovery of this debt, on the 6th of November, 1855; judgment was obtained by Fessenden’s administrator on the 14th of June, 1856; an order for the sale of the land in Colorado county issued on the 11th day of July, 1856, and the land was sold, in pursuance of the order, on the first Tuesday in September, 1856; an execution then issued, directed to the sheriff of Galveston county, for the purpose of collecting what remained due on the judgment after the sale of the land in Colorado county. This execution was levied on the property of Cornelius O’Connor; Cornelius O’Connor paid the balance due to the estate of Fessenden. The testimony shows that, on the 20th day of February, 1855, the lots in controversy in this suit were conveyed by John O’Connor to Ann Duffy, for the nominal consideration of fourteen hundred dollars. It is also shown that Cornelius O’Connor caused an advertisement to be published in the Tri-Weekly News, (a paper pubEshed in the city of Galveston,) for several weeks prior to the 8th day of October, 1856, by which advertisement, “all persons were cautioned from buying or trading for ” the lots in controversy, “ as the title to the same was in dispute.” On the 8th day of October, 1856, Ann Gormly, (formerly Ann Duffy,) and her husband, Peter F. Gormly, conveyed the lots in controversy to the appellant, Francis Bacon, for the consideration of fourteen hundred and sixty dollars, which was paid in cash, and which was shown to have been the fair value of the lots at that time.

The evidence shows that when Cornelius O’Connor caused the advertisement to be inserted in the newspaper, the appellant took legal advice concerning the validity of the title of Ann Gormly, and was told that her title was a good one, so far as any information in relation to it could be gained from the records of the county. It is shown also that a friend of the appellant went to Cornelius O’Connor, and told him that the appellant thought of purchasing the lots from Gormly and wife; in reply to which Cornelius O’Connor said in substance, that if the appellant bought the lots he would buy a lawsuit—and he then went on to state that “ John O’Connor had purchased a piece of land at administrator’s sale, on credit, and that he, Cornelius, had 'become John O’Connor’s surety for the purchase money—that John had failed to pay the note—that suit had been brought on said note and judgment recovered, and the land sold for very much less than its original price, and that he, Cornelius, would have to pay the difference, and that if he did have to pay the difference, he would hold the lots—that John O’Connor had no right to sell the lots until the debt for which he, Cornelius, was surety, was paid.” The appellant’s friend, pursuing the conversation with Cornelius O’Connor, told him that the proceedings in relation to the debt for which he was security would not affect the validity of John O’Connor’s conveyance to Ann Duffy—to which Cornelius O’Connor replied, “ I will have the lots.” It is also shown that the appellant Bacon had a conversation with Beisner, the administrator of the estate of Fessenden, in relation to these lots, and Beisner told the appellant in that conversation “ that John O’Connor had made a sale or made his property over to somebody, about the time his debt to Fessenden’s estate became due.” The main question which is presented to our consideration is, whether or not the appellant, Francis Bacon, purchased the lots in controversy from Gormly and wife under circumstances which constitute him a purchaser in good faith, without notice of any defect in the title. It is contended on the part of the appellant that Cornelius O’Connor is estopped from making any objection to the title of Ann Gormly which he did not communicate to the friend of Dr. Bacon, when called upon by that friend to state his reasons why Ana Gormly could not make a good title to the lots. When Cornelius O’Connor was thus called on by Bacon’s friend to say why Bacon would purchase a lawsuit, if he purchased the lots from Ann Gormly,' he did not allege that the deed from John O’Connor to Ann Duffy was without consideration, and the argument is that he is estopped from making that objection to Ann Gormly’s title, in this suit, so as to affect Bacon, because he did not make it specifically when called on by Bacon’s friend to state his objections to Mrs. Gormly’s title. We do not think this position is a sound one. It is very true that a purchaser of real estate will not be affected with notice of a defect in the title which he purchases by every idle rumor that may chance to be floating about, to the effect that the title is not a good one, provided he uses proper care in investigating the title which he purchases. Sd if a purchaser has certain information of a particular defect in the title which he proposes to purchase, and pursues a proper inquiry into the truth of the information which he receives, and ascertains facts which would satisfy a prudent man that the defect to which his attention has been called does not in point of fact exist, he may still be a purchaser in good faith. But the case is different where a party who proposes to purchase real estate has notice of such facts as would lead to a discovery of the truth upon proper inquiry, and who stops short in his inquiry of that point to which a prudent man, under the circumstances, would go. In the case before us, Cornelius O’Connor, when called on by Dr. Hurlbut, who acted as the friend of Dr. Bacon, stated that his objection to the right of Ann Gormly to sell the lots, arose from the fact that John O’Connor owed a debt to an estate; that he (Cornelius) was John’s surety, that he would have the debt to pay, and that John O’Connor had no right to sell the lots until the debt to the estate was paid. It is very clear that Hurlbut understood Cornelius O’Connor to refer to the debt to the estate of Fessenden. Beisner had also told Bacon that John O’Connor had made a sale or made over his property to somebody about the time that his debt to Fessenden’s estate became due. These facts make it plain that Bacon’s mind was directed to the question whether or not the sale of the lots by John O’Connor at a time when he was indebted to the estate of Fessenden, and when Cornelius O’Connor was his surety, was a good sale-or not. He knew that John O’Connor had conveyed the lots to Ann Duffy. The title was perfect on its face. The conveyance was made before the debt to Fessenden’s estate had matured. There was no judgment lien. What defect could there be in the title of Mrs. Gormly ? There could be but one fact, the existence of which could invalidate the title of Mrs. Gormly, and yet Cornelius O’Connor persisted in his statement that Dr. Bacon could not get a good title, and declared that he would have the lots. What was the fact that would invalidate Mrs. Gormly’s title? The fact that the conveyance to her wess without consideration, would leave the lots in her hands subject to the claims of John O’Connor’s creditors. It was known to Bacon that Cornelius O’Connor was surety for John O’Connor, and that if he paid the debt due to Fessenden’s estate, he would have- all the rights of Fessenden’s estate against the property of John O’Connor. How it would seem that all these things being so, the very point to which Dr. Bacon ought to have directed his inquiry was the validity of the conveyance from John O’Connor to Ann Duffy, and .the fact’ upon which the validity of that conveyance depended was the payment of a consideration by Ann Duffy.

We cannot admit it to be a correct proposition that Cornelius O’Connor was under obligation to be at all times ready to explain his objections to the title of Mrs. Gormly, and that if, in attempting to explain those objections, he omitted to state every fact which showed that his objections were well founded, without any intention to conceal anything, he would ever afterwards be estopped from impeaching her title by showing facts which he had before omitted to state, or was unable to state. If Cornelius O ’ Connor had been called upon by Hurlbut, as the friend of Bacon, and asked to state his objections to the title of Mrs. Gormly, and had obstinately remained silent; or if he had stated any fact as the sole ground of his objections to Mrs. Gormly's title, which fact did not affect the validity of the title, then the case would have been different. But here, iii what appears, so far as Cornelius O’Com-nor was concerned in it, to have been a casual conversation, he discloses to Hurlbut facts which would have put a prudent man upon the inquiry whether or not the conveyance from John O’Connor to Ann Duffy was valid against the claims of John O’Connor’s creditors. Beisner had told Bacon that Fessenden’s, estate was a creditor of John O’Connor, and that O’Connor had made a sale, or had made his property over to somebody about the time his debt to Fessenden’s estate matured. This was surely enough to put Bacon upon inquiry whether or not the conveyance to Ami Duffy was voluntary. It directed his attention, or it ought to have directed his attention to the very point, “did Ann Duffy pay for the lots?” or “ did John O’Connor ‘make over’ these lots to Ann Duffy without consideration?” And if Bacon purchased without first solving this question, he took the risk of subsequent developments.

We are of opinion that the instructions of the court to the jury, all taken together, contain a correct statement0 of the law of the case, and are as favorable to the defendant in the court below as-the circumstances of the case warranted. The evidence does not tend in any degree to the conclusion that Cornelius O’Connor, in his interview with Dr. Hurlbut, concealed anything, nor does-it. show that he was called upon to state his whole case, or informed that Dr. Bacon would act upon the facts which he might then disclose.

We are of opinion that the court below did not err in any of the rulings complained of in the assignment of errors. We think the evidence supports the verdict of the jury, and that there is n<* error in the judgment. The judgment of the court below is therefore affirmed,

Judgment affirmed.