Herring v. Walker

22 S.W. 819, 3 Tex. Civ. App. 614, 1893 Tex. App. LEXIS 337

• Court: Court of Appeals of Texas
• Decided: June 21, 1893
• Docket: No. 285.
• Status: Published

Opinion

COLLARD, Associate Justice.

Appellant’s first and only assignment of error is as follows:

“ The court erred in rendering judgment in favor of plaintiff (appellee) for any part of the land in suit, because defendant had a superior lien over the unrecorded deed of trust given by the common source of title, to-wit, Lewis and Ransom Moore, to George Clark and John L. Dyer, which said lien was acquired by him by virtue of his judgment and the filing and record of the abstract of his judgment in Shackelford County on June 12, 1880, when said deed of trust was not properly recorded until May 19, 1890, at which time the land in suit had been levied upon, sold, and purchased by virtue of an execution issued on said judgment; and appellant had no notice, actual or constructive, of said unrecorded deed of trust prior to the date of the levy of said execution.”

At the time defendant had his abstract of judgment recorded in Shackelford County, Haskell County was attached to it for judicial purposes only. Gen. Laws 1876, p. 133.

It was changed to Throckmorton County in 1881, where it remained •until it was organized, January 13, 1885. Gen. Laws 1881, p. 12; Gen. Laws 1883, pp. 31, 62; Gen. Laws 1884, spec, sess., p. 17.

It has been decided in this State, that the recording of a judgment for the purpose of giving it the effect of a lien upon land “ is strictly a judicial purpose.” Folts v. Ferguson, 77 Texas, 307.

The record of defendant’s abstract of judgment in Shackelford County on the 12th of June, 1880, to which at the time Haskell County was attached for judicial purposes, if properly recorded, created the statutory lien upon the land in suit situated in Haskell County. But it was not properly recorded, the clerk making the abstract having failed to certify it as such. Rev. Stats., arts. 3154, 3157; Gin Co. v. Oliver; 78 Texas, 184; Spence v. Brown, decided by this court at present term.

But appellant insists that the judgment of the lower court is erroneous, because he says he acquired his title in good faith and for a valuable consideration, without actual or constructive notice of the deed of trust to Clark and Dyer.

Is it true, that he did not have actual notice of the deed of trust so as to constitute him an innocent purchaser, admitting that in every other -respect he was such ?

Testimony was submitted by both parties upon this subject, and it was the province of the trial judge to decide the question. We can not say that he decided it incorrectly or without sufficient evidence to support the conclusion that defendant had such notice—at least that he was in possession of facts, as shown by the interview with witness Clark, that would put a man of ordinary prudence upon inquiry.

We do not feel authorized, as an appellate Court, to disturb the finding of the court below upon this subject.

It is therefore ordered that the judgment of the court below be affirmed.

Affirmed.

Delivered June 21, 1893.