W. C. Belcher Land Mortgage Co. v. Clark

238 S.W. 685, 1922 Tex. App. LEXIS 445

• Court: Court of Appeals of Texas
• Decided: January 14, 1922
• Docket: No. 9529. [fn*]
• Status: Published

Opinions

CONNER, -C. J.

This case was submitted to the trial court upon an agreed statement of facts under our statutes. We quote such parts of the agreed statement as we think necessary to an understanding of our conclusion. It was agreed that Mrs. F. O. Clark owned “in her own right” two surveys of land situated in Parker county, Tex., aggregating 189 acres, that Mrs. F. C. Clark and her husband, J. M. Clark, owned as community property another survey of ICO acres in Parker county, and that “good title thereto is shown by the records in the parties above named at the time they acquired the sa«ie.” 1 .

On the Tst day of March, 1907, J. M. Clark and wife, F. C. Clark, executed and delivered to H. W, Byers and wife, Lillie F. Byers, a deed to the land above described, for a consideration of $12,000, of which $4,165.05 was paid in cash, with three vendor’s lien notes for $2,000 each, of even date with the deed, bearing 10 per cent, interest from their date and made payable on the 1st of March, 1909, 1911 and 1913, respectively. To secure the Iiayment of said notes the vendor’s lien was expressly reserved in the deed.

Mrs.' F. C. Clark died in Parker county, Tex., July 20, 1907. Her will bore date of May 28, 1906, and was signed “Courtney Clark,” the name by which Mrs. F. C. Clark was generally and commonly known. The will was duly probated and “admitted for record on the 4th -day of September, 1907,” with its attestation recqrded in Probate Book 10, page 1, Parker County, Tex. 1-Ier husband, J. M. Clark, was appointed independent executor with direction that no other action be taken in the county court in the administration of her estate other than to record the will and return an inventory and ap-praisement .of her estate and list of claims. It contained, among others, thé following paragraphs: : ■■ :

“Second. I give and bequeath to my husband, J. M. Clark, the use, income, rents'and benefits of all tho property, real, personal and mixed, I, may die seized and possessed of, to have and to hold the same for and during his natural life, to be used by him as to him may seem best in the rearing and education of our children.

Third. I give and bequeath to my children, William Pierce Clark, Jesse Lee Clark, Robert Roy Clark, Chandler Clark,' Bryon Clark and Ollie May Clark, the reversion and remainder of all the property, real, personal and mixed, I may die seized and possessed of; from and after the decease of my husband, J. M. Clark, to have and to hold the same to the said William Pierce Clark, Jesse Lee Clark, Robert Roy Clark, Chandler Clark, Bryon Clark and Ollie May Clark, to their use and behoof forever,' to be equally divided between them, share and share alike, and it is hereby specially desired and I hereby give all the property I may die seized of to vest in fee simple to my said children as above set out, share and share alike, at the death of my husband, J. M. Clark.”

J. M. Clark, as executor, and 'others, as appraisers, returned and filed in the probate court of Parker county, on September 13, 1907, an inventory and list of claims. The inventory specified the three vendor’s lien, notes executed by Byers and wife; it being declared in connection therewith that an interest therein of $1,200 was the separate property of the deceased. The inventory and list of claims was recorded in the probate minutes of Parker county- on September 16, 1907, and was in all things properly approved by the probate court of Parker county.

It further appears that on the lst day of January, 1908, H. W. Byers and wife, Lillie Byers, reconveyed to J. M. Clark the lands conveyed to them by J. M. Clark and his wife, Mrs. F. C. Clark, on the 1st day of March, 1907, foí- a recited consideration of $12,334.95—

“paid and secured to be paid by J. M. Clarli as follows: The surrender and cancellation of three vendor’s lien notes for $2,000 each signed by H. W. Byers and payable to said J. M. Clark and described in a deed from J. M. Clark and wife to H, W. Byers, dated March 1, 1907, and recorded in Volume 68, on page 368, of the Deed Records of Parker County, Tex. * * * And for the further consideration of two certain notes, or bonds, executed by said J. M. Clark for the sum of $2,500 an.d $2,000, respectively, in favor of the W. C. Belcher Land Mortgage Company, * * * which are fully described in a deed of trust of even date herewith made by said Clark in favor of said mortgage company.”

The deed was in the form of a general warranty deed, but the vendor’s lien was retained against the property conveyed “until the above-described notes and all interest thereon are fully paid according to their face and tenor, effect and reading, when this deed shall become absolute.”

On the same day, to wit, January 1, 1908, J. M. Clark executed and delivered to the W. C. Belcher Land Mortgage Company his obligation for the sum of $2,500 and $2,000, respectively, and secured the same by a trust deed in a familiar form. The trust deed, among other things, recited that it was—

“executed, delivered, and accepted in aid of a just and subsisting vendor’s lien upon the hereinbefore conveyed real estate and premises, which said vendor’s lien is retained in a certain deed of conveyance of date the 1st day of January, 1908, executed by H. W. Byers and wife, conveying said described real estate and premises to J. M. Clark. * * * And said bonds and notes (executed by J, M. Clark to the mortgage company) hereby further secured are executed, delivered, and accepted in renewal and extension of the original debt for the unpaid portion of the purchase money of the said real estate and premises and for interest accrued and to accrue thereon, and the holder or holders of said bonds and notes, or of either or any of them, secures, retains, and is subrogated to all the rights, remedies, and liens of the vendor of the said real estate and premises, his heirs and assigns, expressed or implied in the said deed, and the said vendor’s lien upon the said real estate and premises and every part thereof is hereby expressly retained and perpetuated to secure the full payment of said bonds and notes, with interest and attorney’s fees as therein expressed.”

The deed of trust authorized a sale of the premises in case of default on the part of Clark on the payment of his notes.

Thereafter, on November 3, 1908, J. M. Clark, by warranty deed, conveyed the lands in controversy to J. W. Clark “in consideration of $2,000 paid by J. M. Clark as follows: $2,000 cash in hand to me paid, the receipt of which is hereby acknowledged; also the assumption by grantee of two notes for the sum of $2,500 and $2,000, respectively, executed by J. M. Clark on January 1, 1908, and payable to the W. C. Belcher Land Mortgage Company at Fort Worth, Tex., five and eight years after date, and also all interest accruing or to accrue on said notes, all fully described in a deed of trust executed by J. M. Clark” to secure the mortgage company. While the deed is in the form of a warranty deed, the grant is only to “all of the grantee’s interest in and tó” the lands in question. Later, to wit, on the 30th day of March, 1920, J. M. Clark died intestate in Parker county.

At the maturity of the obligations described in the deed of trust executed by J. M. Clark to the mortgage company, and which were assumed by J. W. Clark in the deed last above mentioned, the same were renewed, and a new obligation was executed by said J. W. Clark in favor of the W. C. Belcher Land Mortgage Company in the sum of $6,-000, dated December 28, 1912, due five years after date, to secure payment of which J. W. Clark executed a deed of trust in form substantially similar to that executed by J. M. Clark, reference therein being expressly made to the deed and lien mentioned in the deed from Byers and wife to J. M. Clark, and reference also being made to “the original debt for the unpaid portion of the purchase money of said real estate and premises.”

It further appears that J. W. Clark failed to pay the obligation in the deed of trust executed by him, and by virtue of its terms the mortgage company sold the lands in question, at which sale the W. O. Belcher Land Mortgage Company became the purchaser and thereafter sold to one W. M. Brown.

We deem it material only to further quote the following paragraphs of the agreed statement on which the case was submitted:

“It is further agreed that, if the facts herein stated show notice to the W. C. Belcher Land Mortgage Company of the claim, right, or interest of the plaintiffs herein to any part or portion of the subject-matter of this controversy, then in such event it is agreed that judgment may be entered in their favor against the W. C. Belcher Land Mortgage Company and the other defendants in this suit for the sum of $1,100, with 6 per cent, interest thereon from the date of the death of J. M. Clark, which was on March 30, 1920, which judgment shall also fix and establish a lien, with proper decree of foreclosure upon all of the lands described in the deed from J. M. Clark and wife , to H. W. Byers, with the exception of that portion that is shown to be owned by Jeff Scoville, and subsequently purchased by the W. C. Belcher Land Mortgage Company.

“It is further agreed that, if notice is shown to the defendants by the facts herein stated, then judgment may be entered for the plaintiffs for $1,100, with 6 per cent, interest thereon from the date of the death of J. M. Clark, which occurred qn March 30, 1920, but, if legal notice of plaintiffs’ claim is not shown, then judgment shall be entered in favor of the defendants.”

The case is presented to us in appellant’s ' brief under two assignments. Under the first assignment it is insisted that—

“A life estate in personal property cannot be created by will without the intervention of a trustee, and the devisee of such "an estate takes the same in fee; freed of the claim or claims of the remainderman.”

Under the second assignment it is insisted that—

“The probate record in question was not constructive notice to' us of plaintiffs’ interest in said notes, because probate records are not constructive notice of their contents.”

[1] It is evident from this presentation that appellant has assumed that the only interest of the appfellees, the children of J. M. Clark and F. C. Clark, was and is in. the vendor’s lien notes executed and delivered by H. W. Byers to J. M. Clark, and which were subsisting obligations at the time of the death of Mrs. F. C. Clark and at the time of the probate of her will. But we are of the opinion that the interest of appellees is not to be so limited. Under the terms of the agreement our investigation is restricted to a determination of the question of whether appellant had notice, either actual or constructive, of appellees’ interest in the property in question, whatever may be the character of that interest. In this connection it should be observed that the transcript does not present a copy of the pleadings. We cannot know therefrom whether the action as instituted by appellees was to recover the lands that were originally owned by their mother in her separate right, and their mother’s interest in the community property, or whether they sought to recover only a proportionate interest in the vendor’s lien notes. But, whether one nr the other, appellees are entitled to the judgment rendered in their favor if the facts stated sufficiently support the trial court’s conclusion thát appellant had notice of that interest. It therefore seems unnecessary for us to discuss the question of whether a life estate may, under our laws, be created in personal property without the intervention of a trustee.

[2] However, in deference to appellant’s presentation of the case, we will briefly notice its propositions. By thé terms of Mrs. F.. C. -Olark’s will, there was devised to her husband, X M. Clark, “during his natural life,” not the title in fee, but merely “the use, income, rents and benefits” of all the property which Mrs. P. 0. Clark was entitled to at the time of her death, such use being limited to the rearing and education of their children, with the remainder over to them upon the death of X M. Clark. That such a will is valid and creates a life estate and imposes upon the taker of the life estate a trust for the benefit of the beneficiaries named seems to. be well supported by our decisions, whatever may be the rule in other states. Article 7855, V. S. Tex. Civ. Statutes; McMurry v. Stanley, 69 Tex. 227, 6 S. W. 412; Sprinkle v. Leslie, 36 Tex. Civ. App. 356, 81 S. W. 1018; Simonton v. White, 93 Tex. 50, 53 S. W. 339, 77 Am.. St. Rep. 824; Wiess v. Goodhue, 98 Tex. 274, 83 S. W. 178; Dulin v. Moore, 96 Tex; 135, 70 S. W. 742 ; 40 Cyc. p. 1614, and authorities cited in note 29.

[3] We further conclude, if necessary to sustain the judgment, that the agreed statement is .sufficient to support the court’s finding to the effect that the appellant company had' notice of Mrs. E. C. Clark’s death and consequent interest of her children in the vendor’s lien, notes mentioned. A decree probating a will and the proceedings thereunder is at least in the. nature of a decree in rem, which concludes the whole world. See Freeman on Judgments (4th Ed.) § 648 ; 15 R. C. L. p. 637, § 80.

Article 7873, V. S. Tex. Civ. Statutes, provides that;

“All original wills, together with the probate thereof, shall be deposited in the office of the clerk of' the county court * * * wherein the same shall have been probated, and shall there remain, except during such time as they may be removed to some other court, by proper' process, for inspection.” -

Article 7874 declares;

■ “Every such will, together with the probate thereof, shall be recorded by the clerk of the county court in a book to be kept for that purpose;’ and certified copies of such will and the probate of the same, or of the record thereof, may be recorded in other counties, and may be used in evidence as the original might be.”

It may thus be seen that the law provides-for- the record of a will, together with its probate, and the agreed statement of facts shotvs- that the will in question was- “recorded in Probate Book 10, page 1, Parker county,,. Tex.,” and that it was “duly probated and admitted for .record”, on the 4th day of September, 1907. No authoritative Texas case has been cited .holding that the probating decree and-record of a- will recorded, as provided in article 7874, above quoted, is without effect as affecting all the world with constructive notice of its legal operation. Nor do we find in our statutes of registration where it is specifically required that the probate of a domestic will shall be recorded otherwise than is pointed out in that article. The requirement that it be recorded can well be said to have been intended to give notice of its contents and effect. And the case of Hymer v. Hollyfield. (Tex Civ. App.) 87 S. W. 722, writ refused, at least tends to the conclusion that a probated will, recorded as directed in the article referred to, gives constructive notice of the death of the testator and of the interest devised.

[4] It is insisted that the fact that the will was signed by “Courtney Clark” instead of F. G. Clark, and that the due dates of the notes were improperly stated in the inventory renders the record ineffectual as notice. But the will recites that the testator is' the wife of J. M. Clark, and it is agreed that Mrs." F. C. Clark was “commonly known” as “Courtney Clark,” and the inventory, among other things describes “three vendor’s lien notes for the sum of $2,000 each,” signed by H. W. .Byers, and declares that the deceased was entitled to an interest of $1,-200 in those notes as her separate property. . So that, if the probate proceedings were sufficient to put the appellant company upon inquiry, as . it seems to us they are, the inaccuracies noted could not mislead any one who should examine the record; for, taken as a whole, an inquirer, by the exercise of diligence, could certainly .learn that , the will in question was that of Mrs. F. C. Clark, and ‘that certain of the lands conveyed to Byers, and in consideration of which the three • vendor’s lien notes were given was owned in her own separate right.

[5] But, if mistaken in the foregoing conclusions, we think for yet another and perhaps a better reason appellant must be held to have had notice of the interest of appellee's in the subject-matter of this suit. It is agreed that appellant had no actual “knowledge.” But knowledge will be imputed and may be implied from circumstances where the circumstances known to one concerning a matter in which he is interested are sufficient to require' him as an honest and prudent person to investigate concerning the rights of others in the sam'e matter, and diligent investigation will lead to a discovery of the right conflicting with his own. In such a case he is charged with knowledge of all. that might have been discovered' by such investigation. In others words, whatever is notice enough to excite attention and put. the party on his guard and'call for in quiry. is. also notice of everything to which it is afterwards found that such inquiry might have led, although all was unknown for want of • investigation. See Lumber Co. v. Broocks (Tex. Civ. App.) 165 S. W. 507, writ of error denied; Skov v. Coffin (Tex. Civ. App.) 137 S. W. 450, writ of error denied; Hawley v. Bullock, 29 Tex. 217; Humphries v. Freeman, 22 Tex. 45; Harrison v. Boring & Kennard, 44 Tex. 255.

[6] By again referring to the agreed statement of facts, it will be seen that on January 1, 1908, H. W. Byers and wife re-conveyed all of the lands theretofore conveyed to him by J. M. Clark and wife. This deed recites that the consideration for this reconveyance was made in consideration, among other things, of “the surrender and cancellation of three vendor’s lien notes for $2,000 each, signed'by H. W. Byers and payable to J. M. Clark, and described in a deed from J. M. Clark and wife to H. W. Byers, dated March 1, 1907,” and the further consideration of “two certain notes or bonds executed by J. M. Clark for the sum of $2,500 and $2,000, respectively, in favor of W. C. Belcher Land Mortgage Company.” It is evident from an examination of this deed that the $4,500 evidenced by the notes to the mortgage company was borrowed by J. M. Clark for the purpose of restoring to H. W. Byers the amount of cash, plus interest, etc., that Byers had paid to J. M. Clark at the time of his original purchase. So that, in legal effect, this transaction amounted to- a revocation or cancellation of the original conveyance by J. M. Clark and wife to H. W. Byers.

[7] In the recent ease of Hunter v. Hale (Tex. Civ. App.) 233 S. W. 1005, it was distinctly held, as has often been held, that a deed to a vendee, reserving the vendor’s lien, is an executory contract and leaves the superior legal title in the vendor, and that as an executory contract it may, by agreement between the vendor and the vendee, be rescinded by a return of the deed by the vendee, and the vendor’s cancellation of the notes given for the purchase price. It was held that such transaction had the effect in equity to reconvey all the right, title, and interest that the deed had vested in the purchaser. In that case the deed had not been recorded. In the case before us it was. Hence a formal transfer by the vendee, Byers, back to J. M. Clark would serve to remove a cloud upon the title, but no other -right having intervened the distinction is not otherwise material. The fact is that J. M. Clark canceled the three vendor’s lien notes, and it is difficult to see, the notes having been made payable to him, how they could thereafter be enforced by either J. M. Clark or any one of the beneficiaries under Mrs. Clark’s will. And therefore, as stated, we think that the transaction as a whole amounted in equity to a revocation or rescission of the original executory contract, by virtue of which the three vendor’s lien notes had been executed, and that the execution of the deed in return to J. M. Clark, thereby vesting him with the apparent legal title, will in no wise injuriously affect the interest of Mrs. F. C. Clark’s children. In its essence and in equity such reconveyance vested in J. M. Clark the legal title in trust for the interest of his children as fully as such interest would have vested had the original conveyance by Clark and wife to Byers never been made. And the transaction, as we conclude, is to be so construed and given effect as against all parties having notice thereof. See Stone v. Kahle, 22 Tex. Civ. App. 185, 54 S. W. 375; Hand v. Errington (Tex. Civ. App.) 233 S. W. 567, and cases therein cited; Simonton v. White, 93 Tex. 50, 53 S. W. 339, 77 Am. St. Rep. 824; Monday v. Vance, 92 Tex. 428, 49 S. W. 516.

IS] That appellant had notice of this re-conveyance and such cancellation of the notes and such equitable reinvestment of right in Mrs. Clark’s devisees, we think, cannot be doubted. It in truth made itself a party to the transaction. It loaned J. M. Clark the money necessary to restore Byers to his original position. It required a trust deed expressly referring to the transaction. It also knew, or must be held to know, that before the original conveyance Mrs. F. C. Clark owned in her own Separate right one of the tracts of land' and the community interest in the rest. We say that appellant company knew this for the reason that it was all exhibited by the recorded chain of title through and under which it asserts its right.

We accordingly conclude that, for the reason stated, the judgment below must be affirmed.

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