McLouth v. Hurt

51 Tex. 115

• Court: Texas Supreme Court
• Decided: July 1, 1879
• Status: Published

Opinion

Gould, Associate Justice.

White held under an absolute deed acknowledging receipt of the consideration, and when Hurt acquired his lien there was nothing of record to give notice that the purchase-money had not in fact been paid, or that the property was incumbered by deed of trust or otherwise. The deed of trust on its face purported to convey an entirely different part of out-lot 67 from that purchased by White and afterwards mortgaged to Hurt. The registration of that trust deed was not constructive notice of an incumbrance on different property. Registration is constructive notice only of what appears on the face of the deed as registered. (Nelson v. Wade, 21 Iowa, 52; Lally v. Holland, 1 Swan, 411; Baldwin v. Marshall, 2 Humph., 116; Frost v. Beekman, 1 Johns. Ch., 299; Lessee of Jennings v. Wood, 20 Ohio, 266.)

It is claimed that, notwithstanding the evidence shows that neither Hurt nor his attorney had any actual knowledge of the deed of trust under which appellants claim, a proper investigation of White’s title would have led them to inspect the record of that trust deed, and that by such inspection a reasonably prudent man would have been led to inquire whether it was not intended to embrace the same property that was conveyed to White. If it had appeared that Hurt or his attorney had actual knowledge of the deed of trust, and had inspected it as recorded, then it might have been a question of fact whether they were not so put upon inquiry. But no authority has been cited supporting the presumption, in opposition to direct evidence to the contrary, that the record of the deed of trust was actually examined. Such an extension of the constructive notice arising from registration is unauthorized by anything in the statute, and is not supported by authority. (Watson v. Chalk, 11 Tex., 93; Peterson v. Lowry, 48 Tex., 411.)

As Hurt occupied the position of an innocent purchaser without notice, the court did not err in refusing to reform the deed of trust as to him, or in giving his lien the prefer-. ence. The judgment is affirmed.

Affirmed.