CONNER, Chief Justice.
— On September 21, 1906, appellee Baker instituted this suit to recover all of lot 13 in Block 59 of the city of North Fort Worth, Texas, “as per map of same recorded in volume 63, pages 149-150, of the deed record of Tarrant County.” Appellant Sophia Beavers owns lot 6 immediately west of said lot 13, and as part of said lot 6 had fenced about thirty feet, as appellee alleges, of the west end of said lot 13, and hence the suit. The trial resulted in a verdict and judgment for appellee, of which appellants complain.
The facts substantially are that the city of North Fort Worth was duly incorporated under the provisions of chapter 11, title 18 of the Bevised Civil Statutes of Texas, as amended in chapter 131 of the Acts of 1897, on the 12th day of November, 1902, at which time the proceedings, together with a plat of the incorporated territory, including said block 59, was duly recorded “in Deed Becord of Plats, volume 106, pages 64, 65, 70 and 71, Tarrant County, Texas.” The plat here referred to shows that lot 6 is about twice the depth of lot 13, but fails to show in feet the exact width or depth of either lot, and it also fails to show that there was any alley platted between the lots. Thereafter, on the 29th day of December, 1902, the North Fort Worth Townsite Company executed a lease of said lot 6, block 59, to J. G. Beavers, which, among other things, conferred upon Beavers an option of purchase. The lot in the lease was described merely as “lot 6, block 59, in North Fort Worth, according to the plat thereof on record in the office of the clerk of the County Court of Tarrant County, Texas.” It was formally admitted that Sophia Garbutt, now Sophia Beavers, acquired by purchase all of the rights and interest to said lot 6 that had been conferred upon J. G. Beavers by the contract above mentioned, and it is undisputed that later she exercised the option given to Beavers, and purchased lot 6 from the North Fort Worth Townsite Company, receiving deed therefor on November 4, 1903, the
deed, however, describing the lot in the same terms as it was described in the Beavers contract, viz., as “lot 6 in block 59 in North Fort Worth, according to the plat thereof on record in the office of the clerk of Tarrant County, Texas.” The deed was duly recorded June 9, 1906. Beavers testified, without contradiction, that at the time of the contract with him for the purchase of lot 6, the agent of the townsite company exhibited a printed map, incorporated in the record, which shows lot 6 to have a depth of one hundred and forty feet, and that the lines of the lot were actually so pointed out to him. This printed map represents block 59 substantially the same as the map hereinbefore referred to, except that the printed map by figures denotes that lot 6 has a frontage west of fifty feet with parallel lines extending east to a depth of one hundred and forty feet. Sophia Gar-butt later, and prior to the institution of this suit, intermarried with said J. C. Beavers, and both, as also the townsite company, are parties herein.
Appellee Baker claims lot 13, block 59, by virtue of a deed executed by the president of the North Fort Worth Townsite Company on the 16th day of August, 1906, and recorded on the 18th day of that month. The deed recites “the consideration of four hundred dollars, payable $15 in cash, and a promissory note providing for the payment of $5 per month, with interest at the rate of eight percent per annum,” and thus describes the lot: “Lot 13, in block 59, of the town of North Fort Worth, as per map or plat of same recorded in volume 63, page 149 of the deed record of Tarrant County, Texas.” The map referred to in this deed is one that was made and duly recorded by the “North Fort Worth City Company of Fort Worth, Texas, by N. Harding, receiver,” on the 2d day of October, 1894, and shows that lot 13 has an east frontage of fifty feet, extending back about ninety feet to an alley, and that lot 6 fronts west with an eastern extension one hundred feet to the same alley, the width of the alley not being shown. It is undisputed that the North Fort Worth Townsite Company is the grantee and successor of the North Fort Worth City Company, and the authority of Harding, as receiver, is not questioned.
The court tiras submitted the issues:
“Gentlemen of the Jury: If from the evidence you find that at the time the written contract between the North Fort Worth Townsite Company and J. G. Beavers for the purchase of the property therein described was entered into, it was agreed by and between Mr. Hopkins, representing said company, and said J. G. Beavers, that the lot referred to in said contract was 140 feet in depth; and if you further find from the evidence that to give said lot that depth would include the property in controversy, and that the map referred to in said contract showed the lot to be of that depth, or that at the time plaintiff purchased the lot described in his deed introduced in evidence he had notice of any fact which would have put a person of ordinary prudence upon inquiry that would, if pursued, have led to a discovery of said understanding and agreement by and between said Hopkins and said Beavers, if you find there was such an agreement, then you will return a verdict in favor of defendants, J. G. Beavers and Sophia Beavers, as
against their co-defendant, North. Fort Worth Townsite Company, and as against plaintiff.
“The burden is upon the defendants to sustain by a preponderance of the evidence the affirmative of the issues submitted to you in foregoing portions of this charge, and if they have not discharged that burden you will return a verdict in favor of the plaintiff for the property sued for and described in his petition, and also in favor of defendant, North Fort Worth Townsite Company, on the cross-bill against it by defendants, J. G. Beavers and Sophia Beavers.
“You are the exclusive judges of the credibility of the witnesses, of the weight of the evidence and of the facts proved.”
The verdict and judgment was for appellee, and appellants have assigned a number of errors. We can not uphold the contention that the agreement in the trial to the effect that Sophia Garbutt by purchase acquired all of the interest in lot 6 J. H. Beavers had at the time he sold to her, and that Mrs. Garbutt acquired from the North Fort Worth Townsite Company the property described in the deed of the company to her, required the peremptory instruction requested in appellants’ favor. These agreements were evidently intended to only close dispute as to the fact, otherwise undisputed in the record, that Mrs. Garbutt acquired from Beavers all of the interest in lot 6 he had secured by virtue of his contract with the townsite company, and all of the interest the company conveyed by the deed to her. There yet remained the question of whether, as against appellee, the deed in fact conveyed the land in controversy, and if so, whether appellee had notice thereof. The court therefore properly rejected the peremptory instruction.
Special charges numbers one, two and three required a finding for appellants in event there was either fraud or mutual mistake in the descriptive recitation of her deed, regardless of whether appellee had notice thereof. The charges were therefore properly rejected as ignoring this issue.
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CONNER, Chief Justice.
— On September 21, 1906, appellee Baker instituted this suit to recover all of lot 13 in Block 59 of the city of North Fort Worth, Texas, “as per map of same recorded in volume 63, pages 149-150, of the deed record of Tarrant County.” Appellant Sophia Beavers owns lot 6 immediately west of said lot 13, and as part of said lot 6 had fenced about thirty feet, as appellee alleges, of the west end of said lot 13, and hence the suit. The trial resulted in a verdict and judgment for appellee, of which appellants complain.
The facts substantially are that the city of North Fort Worth was duly incorporated under the provisions of chapter 11, title 18 of the Bevised Civil Statutes of Texas, as amended in chapter 131 of the Acts of 1897, on the 12th day of November, 1902, at which time the proceedings, together with a plat of the incorporated territory, including said block 59, was duly recorded “in Deed Becord of Plats, volume 106, pages 64, 65, 70 and 71, Tarrant County, Texas.” The plat here referred to shows that lot 6 is about twice the depth of lot 13, but fails to show in feet the exact width or depth of either lot, and it also fails to show that there was any alley platted between the lots. Thereafter, on the 29th day of December, 1902, the North Fort Worth Townsite Company executed a lease of said lot 6, block 59, to J. G. Beavers, which, among other things, conferred upon Beavers an option of purchase. The lot in the lease was described merely as “lot 6, block 59, in North Fort Worth, according to the plat thereof on record in the office of the clerk of the County Court of Tarrant County, Texas.” It was formally admitted that Sophia Garbutt, now Sophia Beavers, acquired by purchase all of the rights and interest to said lot 6 that had been conferred upon J. G. Beavers by the contract above mentioned, and it is undisputed that later she exercised the option given to Beavers, and purchased lot 6 from the North Fort Worth Townsite Company, receiving deed therefor on November 4, 1903, the
deed, however, describing the lot in the same terms as it was described in the Beavers contract, viz., as “lot 6 in block 59 in North Fort Worth, according to the plat thereof on record in the office of the clerk of Tarrant County, Texas.” The deed was duly recorded June 9, 1906. Beavers testified, without contradiction, that at the time of the contract with him for the purchase of lot 6, the agent of the townsite company exhibited a printed map, incorporated in the record, which shows lot 6 to have a depth of one hundred and forty feet, and that the lines of the lot were actually so pointed out to him. This printed map represents block 59 substantially the same as the map hereinbefore referred to, except that the printed map by figures denotes that lot 6 has a frontage west of fifty feet with parallel lines extending east to a depth of one hundred and forty feet. Sophia Gar-butt later, and prior to the institution of this suit, intermarried with said J. C. Beavers, and both, as also the townsite company, are parties herein.
Appellee Baker claims lot 13, block 59, by virtue of a deed executed by the president of the North Fort Worth Townsite Company on the 16th day of August, 1906, and recorded on the 18th day of that month. The deed recites “the consideration of four hundred dollars, payable $15 in cash, and a promissory note providing for the payment of $5 per month, with interest at the rate of eight percent per annum,” and thus describes the lot: “Lot 13, in block 59, of the town of North Fort Worth, as per map or plat of same recorded in volume 63, page 149 of the deed record of Tarrant County, Texas.” The map referred to in this deed is one that was made and duly recorded by the “North Fort Worth City Company of Fort Worth, Texas, by N. Harding, receiver,” on the 2d day of October, 1894, and shows that lot 13 has an east frontage of fifty feet, extending back about ninety feet to an alley, and that lot 6 fronts west with an eastern extension one hundred feet to the same alley, the width of the alley not being shown. It is undisputed that the North Fort Worth Townsite Company is the grantee and successor of the North Fort Worth City Company, and the authority of Harding, as receiver, is not questioned.
The court tiras submitted the issues:
“Gentlemen of the Jury: If from the evidence you find that at the time the written contract between the North Fort Worth Townsite Company and J. G. Beavers for the purchase of the property therein described was entered into, it was agreed by and between Mr. Hopkins, representing said company, and said J. G. Beavers, that the lot referred to in said contract was 140 feet in depth; and if you further find from the evidence that to give said lot that depth would include the property in controversy, and that the map referred to in said contract showed the lot to be of that depth, or that at the time plaintiff purchased the lot described in his deed introduced in evidence he had notice of any fact which would have put a person of ordinary prudence upon inquiry that would, if pursued, have led to a discovery of said understanding and agreement by and between said Hopkins and said Beavers, if you find there was such an agreement, then you will return a verdict in favor of defendants, J. G. Beavers and Sophia Beavers, as
against their co-defendant, North. Fort Worth Townsite Company, and as against plaintiff.
“The burden is upon the defendants to sustain by a preponderance of the evidence the affirmative of the issues submitted to you in foregoing portions of this charge, and if they have not discharged that burden you will return a verdict in favor of the plaintiff for the property sued for and described in his petition, and also in favor of defendant, North Fort Worth Townsite Company, on the cross-bill against it by defendants, J. G. Beavers and Sophia Beavers.
“You are the exclusive judges of the credibility of the witnesses, of the weight of the evidence and of the facts proved.”
The verdict and judgment was for appellee, and appellants have assigned a number of errors. We can not uphold the contention that the agreement in the trial to the effect that Sophia Garbutt by purchase acquired all of the interest in lot 6 J. H. Beavers had at the time he sold to her, and that Mrs. Garbutt acquired from the North Fort Worth Townsite Company the property described in the deed of the company to her, required the peremptory instruction requested in appellants’ favor. These agreements were evidently intended to only close dispute as to the fact, otherwise undisputed in the record, that Mrs. Garbutt acquired from Beavers all of the interest in lot 6 he had secured by virtue of his contract with the townsite company, and all of the interest the company conveyed by the deed to her. There yet remained the question of whether, as against appellee, the deed in fact conveyed the land in controversy, and if so, whether appellee had notice thereof. The court therefore properly rejected the peremptory instruction.
Special charges numbers one, two and three required a finding for appellants in event there was either fraud or mutual mistake in the descriptive recitation of her deed, regardless of whether appellee had notice thereof. The charges were therefore properly rejected as ignoring this issue.
The objection to the exclusion of the testimony shown in bills of exceptions numbers one, two and three, to the effect that at the time Beavers sold to Mrs. Garbutt, he represented the lot to have a depth of one hundred and forty feet, is obviated by the' fact that it is agreed that she acquired all of the interest held by Beavers, and the court in effect so assumed in his charge. The charge also destroys the force of the further suggestion that the evidence was relevant to appellants’ plea for a correction of the deed to Mrs. Garbutt. Whatever the right as between Mrs. Garbutt and the townsite company, it could not affect appellee unless he had notice at the time of bis purchase of the fraud or mistake, and -the instruction was to the effect that appellants were entitled to recover if appellee had such notice.
The remaining questions present more difficulty, perhaps. In the ninth assignment it is insisted that the "court’s charge is erroneous in placing the burden of proof upon appellants. It is true 'that ordinarily the burden is upon the subsequent vendee of land to show that he is a
Iona fide
purchaser for value without notice ,of the title of a prior grantee (see Revised Statutes, article 4640; Watkins v. Edwards, 23 Texas, 448), but as applied to the circumstances of this case we are
of opinion that the court’s charge is correct. Appellants proceeded upon the theory that the map or plat to which the contract of Beavers and the later deed to Mrs. Garbutt referred was not the controlling plat, and that said deed without correction was insufficient to vest in Mrs. Garbutt the legal title to any part of the land in controversy. In appellants’ answer they specially pleaded that the recitation in the deed from the townsite company to Mrs. Garbutt, viz.: “As shown by the map now of record in the county clerk’s office of Tarrant County, Texas,” was placed in the deed “either by mutual mistake of "the parties or placed 'therein by defendant (the townsite company) in order to defraud and deprive her (Mrs. Garbutt) of a portion of the property she bought and paid for, and for that reason she says that to this extent the recital in said deed is incorrect,” and appellants prayed for reformation and correction of the deed so as to show title to the land in controversy. It therefore being in effect admitted that the controlling map was the one to which reference was made in appellee’s deed he became invested with the legal title to lot 13, which, according to the map, included the land in controversy, and could hence be denied a recovery only by proof of the special defense mad.e, the burden of doing which rested upon appellants. In other words, appellee was in the attitude of holding the legal title as against which appellants offered a title in equity and sought enforcement of 'the appropriate equitable remedy. Appellants were therefore required to not only prove their equitable title, but also to show that the holder of the legal title had notice thereof. Halbert v. De Bode, 15 Texas Civ. App., 615, and cases therein cited on this point, page 630.
Error is assigned to the rejection of the following charge requested by appellants, viz.: “You are charged that if defendant Beavers bought a lot ■ 50 by 140 feet, and that he sold his contract to Mrs. Sophia Garbutt (now Sophia Beavers), and that plaintiff bought said lot 13 partly on credit and partly for cash, and that there is enough of said lot 13 left outside of the land in controversy to compensate him for the cash paid, if any is shown to be paid by the-evidence, then and in that event 3rou will find for defendants, Beavers.” Possibly the facts, if fully developed, would have entitled appellants to the relief indicated in the charge quoted, for the rule is that one setting up the equity of a
bona fide
purchase without notice of the prior title can be protected to the extent only of his payment of purchase price, and the making of a non-negotiable note is not payment. (Evans v. Templeton, 69 Texas, 375.) The execution, however, of negotiable promissory notes for the purchase money is held in this State to be such payment as entitles a person, not otherwise precluded, to the protection of the rule. (Tillman v. Hellner, 78 Texas, 597; Watkins v. Sproull, 8 Texas Civ. App., 427; Cameron v. Romele, 53 Texas, 238; Dodd v. Gaines, 82 Texas, 429.) As we have seen, the burden of proof was on appellants below to establish their equity and now here to show error in the court’s rejection of the charge, and we are of opinion that they have failed to discharge such burdens. In the statement under the assignment under consideration nothing appears save a copy of the rejected charge. The record otherwise shows that appellee paid cash and gave promissory notes for the remainder of
the purchase price for lot 13, but there is nothing to show the value of that part of lot 13 not in controversy in this suit. If that part of lot 13 that would remain after excluding the land claimed by appellant, equals in value appellee’s cash payment, or if the promissory notes given by appellee were non-negotiable, appellants should have so shown. Otherwise, we are unable to say that the evidence raises the issue, and that the court committed reversible error in rejecting the special charge quoted.
We conclude that all assignments of error should be overruled and the judgment should be affirmed.
Affirmed.
Writ of error refused.