Salmon v. Huff

15 S.W. 257, 80 Tex. 133, 1891 Tex. LEXIS 967

• Court: Texas Supreme Court
• Decided: March 3, 1891
• Docket: No. 6760.
• Status: Published

Opinions

HOBBY, Presiding Judge.

Although there are several assign-' ments of error contained in the brief of the appellants, it seems to be conceded in effect that the decisive question in the case is raised by the assignment which contends in substance that the filing and registration of appellants’ deeds was constructive notice to appellees. If this contention be correct the judgment of the lower court was erroneous and a decree should be rendered in favor of appellants. If not, however, it is manifest that there can be no recovery by them in this case.

The action is one for the recovery of four hundred and twenty-five acres of land described in the petition. It was brought by the appellants, Mrs. Mary Salmon, joined by her husband, against the appellees Thomson and Huff. There was a trial, verdict of a jury for appellees—defendants below—and judgment therein, from which this appeal is prosecuted.

The land is situated in Wichita County. Both parties claim under a. common source, to-wit, Janies Henderson.

Plaintiffs below (appellants’) title is as follows: Deed from James Henderson to Philip Howard, in December, 1860. Deed of gift from Philip Howard to the plaintiff Mrs. Mary Salmon. These conveyances were filed for record with the district clerk of Montague County in 1872, by whom they were recorded in Book A, Clay • County records, on January 17 and April 12 respectively, 1872. The court house of Montague County, with its records, was destroyed by fire February 25, 1873.

The above mentioned deeds, however, were preserved, and it appears from indorsements thereon were recorded in Wichita County on. September 4 and 6 respectively, 1886.

The title of the defendants below, appellees here, was as follows: Devise of the land by will of James Henderson, probated in 1874, to Emily and B. F. Bishop. They conveyed to H. E. Jetton in 1876. Jetton conveyed to appellee Thomson in December, 1885, who subsequently conveyed an undivided half to appellee Huff. Thomson was a purchaser for value and without notice of plaintiffs’ title or claim.

The court charged the jury in substance that the record of plaintiffs’ deeds in Montague County in the Clay County records would constitute no notice to defendants, if defendants paid a valuable consideration for the land, paid a part of the purchase money, and executed their note for the balance, etc., and that at the time of such payment and .execution of their note they had no knowledge of plaintiffs’ claim and no knowledge of any facts that would put a prudent man on inquiry.

This the appellants’ counsel insists was error, and it is claimed that the deeds having been properly acknowledged and filed for record in Montague County, it constituted notice irrespective of the manner, of their registration.

Conceding that the registration of appellants’ conveyances was valid as claimed, they would not be entitled to recover under the facts in this case. The destruction of the court house and records of Montague County and the preservation of appellants’ deeds made it necessary under the law (article 4392, Revised Statutes) that they should, within four years, record their original deeds in the proper county if they desired to give effect and force to them as recorded instruments from the date of the filing for registration in Montague County. The appellants’ deeds were not recorded in Wichita County within four years from the enactment of the law referred to. In the meantime the land had been conveyed to an innocent purchaser for value. Thus it will be seen that it is wholly unnecessary to determine whether the registration of these conveyances in Montague County, in Book A, Clay County Records, was valid and operated as constructive notice to appellees. Because the contingency existed subsequent to the destruction of the records and the preservation of the originals, which under the above mentioned article necessitated their reregistration, if the original record was valid and appellants desired to make it available.

We think the judgment should be affirmed.

Affirmed.

Adopted January 20, 1891.

W. M. Flood argued a motion for rehearing.