Beaty v. Whitaker

23 Tex. 526

Opinion

Wheeler, C. J.

The appellants question the authority of the primary judge, before whom the act of sale from Luna, the grantee of the land, to Whitaker, the plaintiff, was passed, of the 14th of November, 1836. But the authority of the judge, we think, cannot reasonably admit of question. The law conferred on him the office and powers of a notary. (Act of Prov. Gov., Art. 5, 6; Hart. Dig. p. 18.) These, under the laws then in force, invested him with authority to make a record of the execution of such acts of sale, and transfers of title; and his acts were entitled to faith, as authentic acts. (Smith v. Townsend, Dallam, 569; Paschal v. Perez, 7 Texas Rep. 361.)

The manner of proving the instrument for registration "in this instance, has been held by this court, sufficient for that purpose. (Edwards v. James, Id. 372.) But the admissibility of the instrument in- evidence, did not depend upon this proof and registration. The execution of the instrument was fully proved upon the trial.

Upon the admissibility of evidence of the declarations of the grantee, after she had parted with the title, or executed a deed of conveyance, in the view we entertain of the case, it is unnecessary to express an opinion; though the evidence had been excluded, the result must be the same.

It is unquestionable, that the plaintiff’s title is good, as against the grantee, Luna, under whom the interveners claim by subsequent conveyances; and that he is entitled to recover, unless they are innocent purchasers, or purchasers for a valuable consideration, without notice of the plaintiff’s prior conveyance. But they do not appear to have paid any consideration for the land. They cannot, therefore, be deemed to be innocent purchasers. (Watkins v. Edwards, supra, 443.) Though the plaintiff’s deed was not recorded, they have shown no equity to entitle them to claim priority for their junior deed. To give them such equity, they must have actually expended their money innocently. It is this that creates the equity, upon which the junior deed is given a preference over the elder unrecorded deed. Having expended nothing, the intervenors have no such equity; and standing upon their legal rights, the plaintiff’s is the elder title, and must prevail. The purchase-money must have been actually and truly paid. It is held, that, though it be secured to be paid, yet, if it be not in fact paid before notice of the elder title, the pleá of innocent purchaser, will not avail. (Jewett v. Palmer, 7 Johns. Ch. Rep. 65; Hardingham v. Nicholls, 3 Atk. 304.) Until payment, they have sustained no injury, to raise an equity in their favor, as against the prior unregistered conveyance; they cannot be compelled to make payment, and if they do so, with notice, it is not innocently, and does not entitle them to the protection of innocent purchasers. A strong equity arises in favor of a party who has innocently parted with his money, as against the person whose negligence has been the occasion of it. But the interveners have done nothing to create such equity in their favor. Excluding all the evidence, which they contend was improperly admitted, they have shown no right to intervene, as against the plaintiff, or to oppose his recovery.

The case was submitted to the decision of the court, and the judgment having been rightly rendered, upon evidence which was legal and proper, though the judge may have heard evidence which was not competent, as it can have no influence upon the judgment, it is not a ground of reversal. (Apthorp v. Comstock, 2 Paige, 487, 488.) The judgment is affirmed.

Judgment affirmed.