WILLIAMS, Associate Justice.
This is an action of trespass to try title brought by plaintiff in error to recover of defendants in error a tract of 320 acres of land patented to the heirs of Reuben Hornsby. Both parties claim under M. M. Hornsby. The plaintiff’s title was the elder, but was defeated in the District Court upon the ground (1) that defendants were innocent purchasers without notice of plaintiff’s title, and (2) that plaintiff was estopped by his conduct from asserting his elder title against defendants. The Court of Civil Appeals affirmed the judgment of the District Court upon the first proposition, pretermitting a decision of the second. Plaintiff showed a regular chain of title from the State to M. M.-Hornsby and in himself, under Hornsby, by deed from the latter to S. D. De Cordova, July 14, 1883, and deed from De Cordova to himself July 23, 1883: These two deeds were not recorded until November 27, 1899. The title of defendants originated in a deed from M. M. Hornsby to C. H. Shaw, May 13, 1892, as follows:
“The State of Texas, County of Travis. Know all men by these presents: That whereas, I, M. M. Hornsby, of the county of Travis and State of Texas, have heretofore made, executed and delivered my deed to the Reuben Hornsby survey of 320 acres of land lying and being situate in the county of Wichita, in the State of Texas, and which said deed I am now informed has been lost.
“Now, therefore, I, M. M. Hornsby, in consideration of the premises and of the sum of one dollar to me in hand paid by Charles H. Shaw, of the county of Travis and State of Texas, have bargained, sold and quitclaimed to the said Charles H. Shaw the said Reuben Hornsby survey of 320 acres of land situate in the said county of Wichita in the State of Texas.
“To have and to hold unto him the said Shaw, his heirs and assigns forever.
“Witness my hand this the 13th day of May, 1892.
“M. M. Hornsby.”
They further deraigned title to themselves through the following deeds: C. H. Shaw to W. B. Corwin, December 6, 1892, for an undivided half interest. C. H. Shaw to A. S. James, December 6, 1892. W. B. Corwin to A. S. James, December 6, 1892. x A. S. James and wife to E". Henderson, December 21, 1892. E". Henderson to J. A. Kemp, dated December 21, 1892, but in fact executed later. Defendants, Dodsons, claim under conveyance from Kemp. There is a question of fact, not determined by the Court of Civil Appeals, as to whether James purchased from Shaw and Corwin, who were partners and paid nothing for the land, or purchased from Hornsby through Corwin and Shaw as his agents. He paid $550, but whether as consideration for the land, or to Shaw and Corwin as compensation for services and expenses in procuring the deed from Hornsby, is also a controverted question not settled by the Court of Civil Appeals. The view taken of the case renders further notice of these questions unnecessary. Henderson, Kemp, and the Dodsons bought under warranty deeds, paying adequate considerations, and under circumstances which may be conceded to be sufficient to sustain the finding that they were innocent purchasers, if that defense can be based upon a deed in their chain of title such as that from Hornsby to Shaw. That deed, as will be seen, recites that Hornsby had “heretofore made, executed and delivered his deed” to the land, not stating to whom, and that in consideration of the premises and of one dollar, he bargained, sold and quitclaimed to Shaw. What is the effect of such a deed? The recital is evidence against all parties to the instrument as well as those claiming under it. It states a fact which shows that Hornsby had previously parted with his title and then had none to convey. If such previous conveyance was to another person than Shaw, such other person had the title and Shaw got none. If the first conveyance was to Shaw, it and not the last invested him with the title. The title of Shaw and all persons claiming through him therefore depended upon the answer to the question, to whom was the first deed executed? This the deed does not answer, unless the presumption is to be indulged that the recited conveyance was made to the grantee named in the second. We know of no principle which authorizes such a presumption. The parties agreed to their own instrument and the recitals in it. It contains no express intimation that Shaw was the grantee in the original instrument, or had succeeded to his rights. The only proper conclusion from the omission is, that the maker of the instrument did not intend to commit himself to a determination and declaration that Shaw had acquired title under the previous conveyance. In such an instrument a recital that it was made to supply the loss of a former one under •which Shaw had title would naturally be expected if such were the fact. Many instruments containing such recitals may be found," but a somewhat extended research has not brought to our attention such a one as that in question, and we can not hold that it has the same effect as if it contained recitals which we must assume were intentionally omitted. If the recital had been of an instrument creating a prior mortgage,
lease, or other estate less than the fee, it would hardly be contended that the presumption would arise that Shaw was the grantee therein, Farrow v. Rees, 4 Beav., 18. Such a recital would show an estate still in the grantee subject to his power to convey, and hence there would be less apparent inconsistency between the recital and the attempt to convey than there is in this conveyance. But the recital in question does not undertake to determine the rights existing under the prior conveyance, the grantor leaving that question open to be determined by other evidence, and hence there is no real inconsistency. If the parties claiming under this deed were plaintiffs in trespass to try title, would they, ■ under it alone, after showing title in Hornsby, establish title sufficient to enable them to recover ? We think not, for the reason that their own evidence would disclose an elder title outstanding under Hornsby with which they would not appear to be connected. We have found no authority exactly in point, but there are some which involve the same doctrine. In Maxwell Land Grant Company v. Dawson, 151 U. S., 586, plaintiff in ejectment relied on a deed which conveyed a large tract excepting "parts thereof, which the grantors have heretofore sold and conveyed.” The tract sued for was a part of the larger tract, but plaintiff did not show that it had not been previously sold, and it was held that it could not recover as it had failed to show title to the land sued for. The same ruling was made in a number of other decisions. Corinne Co. v. Johnson, 156 U. S., 576; Rensens v. Lawson, 91 Vt., 254; Cox v. McClure, 71 Conn., 733; Harman v. Stearns, 95 Va., 71; Stockton v. Morris, 39 W. Va., 442. In these cases the deeds passed titles only to land not previously conveyed, and hence the plaintiffs, in order to show that the conveyances passed the lands sued for, were required to prove that they had not been previously sold. In the present case it may be said that the deed purports to convey the whole of the tract and that herein is the distinction. But the grantor was careful to recite that he had previously conveyed, thereby showing that he then had no title, and the result is, that a party claiming under.the deed does not .establish title until, in some way, he obviates the difficulty thus presented. The recital prevents the deed from operating against the prior conveyance.
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WILLIAMS, Associate Justice.
This is an action of trespass to try title brought by plaintiff in error to recover of defendants in error a tract of 320 acres of land patented to the heirs of Reuben Hornsby. Both parties claim under M. M. Hornsby. The plaintiff’s title was the elder, but was defeated in the District Court upon the ground (1) that defendants were innocent purchasers without notice of plaintiff’s title, and (2) that plaintiff was estopped by his conduct from asserting his elder title against defendants. The Court of Civil Appeals affirmed the judgment of the District Court upon the first proposition, pretermitting a decision of the second. Plaintiff showed a regular chain of title from the State to M. M.-Hornsby and in himself, under Hornsby, by deed from the latter to S. D. De Cordova, July 14, 1883, and deed from De Cordova to himself July 23, 1883: These two deeds were not recorded until November 27, 1899. The title of defendants originated in a deed from M. M. Hornsby to C. H. Shaw, May 13, 1892, as follows:
“The State of Texas, County of Travis. Know all men by these presents: That whereas, I, M. M. Hornsby, of the county of Travis and State of Texas, have heretofore made, executed and delivered my deed to the Reuben Hornsby survey of 320 acres of land lying and being situate in the county of Wichita, in the State of Texas, and which said deed I am now informed has been lost.
“Now, therefore, I, M. M. Hornsby, in consideration of the premises and of the sum of one dollar to me in hand paid by Charles H. Shaw, of the county of Travis and State of Texas, have bargained, sold and quitclaimed to the said Charles H. Shaw the said Reuben Hornsby survey of 320 acres of land situate in the said county of Wichita in the State of Texas.
“To have and to hold unto him the said Shaw, his heirs and assigns forever.
“Witness my hand this the 13th day of May, 1892.
“M. M. Hornsby.”
They further deraigned title to themselves through the following deeds: C. H. Shaw to W. B. Corwin, December 6, 1892, for an undivided half interest. C. H. Shaw to A. S. James, December 6, 1892. W. B. Corwin to A. S. James, December 6, 1892. x A. S. James and wife to E". Henderson, December 21, 1892. E". Henderson to J. A. Kemp, dated December 21, 1892, but in fact executed later. Defendants, Dodsons, claim under conveyance from Kemp. There is a question of fact, not determined by the Court of Civil Appeals, as to whether James purchased from Shaw and Corwin, who were partners and paid nothing for the land, or purchased from Hornsby through Corwin and Shaw as his agents. He paid $550, but whether as consideration for the land, or to Shaw and Corwin as compensation for services and expenses in procuring the deed from Hornsby, is also a controverted question not settled by the Court of Civil Appeals. The view taken of the case renders further notice of these questions unnecessary. Henderson, Kemp, and the Dodsons bought under warranty deeds, paying adequate considerations, and under circumstances which may be conceded to be sufficient to sustain the finding that they were innocent purchasers, if that defense can be based upon a deed in their chain of title such as that from Hornsby to Shaw. That deed, as will be seen, recites that Hornsby had “heretofore made, executed and delivered his deed” to the land, not stating to whom, and that in consideration of the premises and of one dollar, he bargained, sold and quitclaimed to Shaw. What is the effect of such a deed? The recital is evidence against all parties to the instrument as well as those claiming under it. It states a fact which shows that Hornsby had previously parted with his title and then had none to convey. If such previous conveyance was to another person than Shaw, such other person had the title and Shaw got none. If the first conveyance was to Shaw, it and not the last invested him with the title. The title of Shaw and all persons claiming through him therefore depended upon the answer to the question, to whom was the first deed executed? This the deed does not answer, unless the presumption is to be indulged that the recited conveyance was made to the grantee named in the second. We know of no principle which authorizes such a presumption. The parties agreed to their own instrument and the recitals in it. It contains no express intimation that Shaw was the grantee in the original instrument, or had succeeded to his rights. The only proper conclusion from the omission is, that the maker of the instrument did not intend to commit himself to a determination and declaration that Shaw had acquired title under the previous conveyance. In such an instrument a recital that it was made to supply the loss of a former one under •which Shaw had title would naturally be expected if such were the fact. Many instruments containing such recitals may be found," but a somewhat extended research has not brought to our attention such a one as that in question, and we can not hold that it has the same effect as if it contained recitals which we must assume were intentionally omitted. If the recital had been of an instrument creating a prior mortgage,
lease, or other estate less than the fee, it would hardly be contended that the presumption would arise that Shaw was the grantee therein, Farrow v. Rees, 4 Beav., 18. Such a recital would show an estate still in the grantee subject to his power to convey, and hence there would be less apparent inconsistency between the recital and the attempt to convey than there is in this conveyance. But the recital in question does not undertake to determine the rights existing under the prior conveyance, the grantor leaving that question open to be determined by other evidence, and hence there is no real inconsistency. If the parties claiming under this deed were plaintiffs in trespass to try title, would they, ■ under it alone, after showing title in Hornsby, establish title sufficient to enable them to recover ? We think not, for the reason that their own evidence would disclose an elder title outstanding under Hornsby with which they would not appear to be connected. We have found no authority exactly in point, but there are some which involve the same doctrine. In Maxwell Land Grant Company v. Dawson, 151 U. S., 586, plaintiff in ejectment relied on a deed which conveyed a large tract excepting "parts thereof, which the grantors have heretofore sold and conveyed.” The tract sued for was a part of the larger tract, but plaintiff did not show that it had not been previously sold, and it was held that it could not recover as it had failed to show title to the land sued for. The same ruling was made in a number of other decisions. Corinne Co. v. Johnson, 156 U. S., 576; Rensens v. Lawson, 91 Vt., 254; Cox v. McClure, 71 Conn., 733; Harman v. Stearns, 95 Va., 71; Stockton v. Morris, 39 W. Va., 442. In these cases the deeds passed titles only to land not previously conveyed, and hence the plaintiffs, in order to show that the conveyances passed the lands sued for, were required to prove that they had not been previously sold. In the present case it may be said that the deed purports to convey the whole of the tract and that herein is the distinction. But the grantor was careful to recite that he had previously conveyed, thereby showing that he then had no title, and the result is, that a party claiming under.the deed does not .establish title until, in some way, he obviates the difficulty thus presented. The recital prevents the deed from operating against the prior conveyance. The case would doubtless be different if the deed had recited another to Shaw or to some one else whose title Shaw had obtained. The recital would not then leave the case open to the question as to who held the title already conveyed. If the party relying on such a deed proved the former conveyance, he would take under it; if he did not prove it, he would take under the last deed, there being nothing in its recitals to destroy its effect as evidence of complete title. Boyce v. Stambaugh, 34 Mich., 348.
It results from what we have said that, upon the face of their evidence, defendants have not an apparent title, even leaving out of view the deeds from Hornsby to De Cordova and from the latter to Waggoner. Such being the case, can they be regarded as bona fide purchasers? Authorities, here and elsewhere, too numerous to mention, hold that
they must Irnow everything appearing upon the face of their muniments of title. The fact here appearing is, that they have no title through their deeds standing alone. Now, we understand it to be of the very essence of the claim of an innocent purchaser, protected by the registration laws, that he must have bought from one apparently invested with title, and have secured from him that which on its face is the title, without notice of a previous conveyance. The title of record appearing to be in his vendor such a purchaser is entitled to rely on the -record, and when he buys that apparent title, without notice of any other, he is protected. But here the very deed which he takes notifies him that the title has already passed from the vendor, and leaves the right which he gets subject to the operation of the previous conveyance. If that conveyance was to another, he has notice of the rights of that other; if to himself, he must prove it, in order to make out his title.
This, it seems to us, takes from his claim its very foundation. And every subsequent purchaser under such a deed takes it with the same notice and the same infirmitj'. Of course we do not hold that parties claiming under such a deed would be estopped from showing that there had been, in fact, no previous valid conveyance, or that it was made to them or to those whose rights they hold; nor do we hold that all this might not be proved by circumstances, or even presumed after long -lapse of time and other attendant facts. No such questions are here presented, a prior deed to another having been produced. The only facts which defendants adduce to sustain their claim, in addition to the proof of purchase, payment of consideration and absence of actual knowledge of the prior unrecorded deed, are the conversations, hereafter stated, between James, Henderson and Waggoner, and a statement made by Shaw to James, at some time not stated, that he (Shaw) had procured a deed from M. M. Hornsby, and that it was destroyed by mistake in his office, and when he went to Hornsby to get a new deed, he declined, under advice of his attorneys, to make any other than that in evidence. The fact contained in this statement is not proved. The conversations with Waggoner were not had in the prosecution of any inquiry excited by the recitals in the deed and do not affect this question; and James could not safely rely on the interested statement of Shaw to destroy the effect of the recital as notice, whether Shaw be regarded as his agent or as his vendor, without any inquiry of Hornsby, who made the deed and who was accessible. Patman v. Harland, L. R. 17 Ch. Div., 353. What would have been the effect of an inquiry of Hornsby resulting in a confirmation of Shaw’s statement we need not decide.
The evidence of estoppel was wholly insufficient. It was claimed to .have arisen (1) from conversations between Waggoner and James, and (2) from conversations between Waggoner and ICemp. -The evidence showed that Waggoner had the tract inclosed in a large pasture with many other tracts, some of which belonged to him and some to others, and that by such inclosure he asserted title only to those tracts which he owned. His title papers generally were in the custody of his attorneys,
but those to the land in controversy were in the possession of other persons. On account of the large number of these holdings (more than a hundred) Waggoner did not always have in mind what tracts he in fact owned; and, in the conversations with James and Kemp, was oblivious of the fact that he owned the land of which they were talking. While James was negotiating for the land, he proposed to sell it to Waggoner, who declined to buy, stating that he did not claim it and that the owner could fence it out of his pasture at any time, and he did not want to use it. There is an utter absence of evidence that James, in purchasing, acted upon or was influenced by what Waggoner said. Henderson, before he purchased, also tried several times to negotiate a sale of it to Waggoner, who, without affirmatively claiming or disclaiming title, simply replied that he did not want to buy it, saying that he had enough land in his pasture. We give, of course, the versions most favorable to the parties in whose favor the jury found.
The absence of evidence that James was influenced by Waggoner’s statement deprives that transaction of a necessary element of an estoppel. Besides, the facts show that neither party was considering the matter with reference to any possible claim Waggoner might have had. James was already negotiating for the land and merely tried to arrange a sale to Waggoner in case he succeeded in purchasing. Nothing was said to indicate to Waggoner that the land referred to was any owned or claimed by him, and the evident assumption of both parties was that it was some of that in the pasture which he did not own. A just view of it would be that his mind was led away from any thought that the land might belong to him already. This is true of the conversation with Henderson. The subject of the conversation was not such as to require any statement from Waggoner as to his own claim, or to make it necessary for him to inquire into it. He simply declined the proposal to sell to him, malting no misrepresentation whatever. It is true that parties are sometimes estopped by their silence and their failure to affirmatively disclose their rights. But this kind of estoppel is founded on an obligation resting upon the party to speak. There is nothing in the circumstances disclosed to create such an obligation. Neither Waggoner nor the others had in mind his title to this property, and nothing in their attitudes suggested to him that they would act upon either his silence or statements.
The case of Nichols-Steuart v. Crosby, 87 Texas, 443, relied on by defendants, was very different. There, one of the parties was considering a proposal to make a loan to the holder of one of the titles, and Smith, the holder of the other of which he was probably forgetful, was appealed to for advice. He did not simply remain silent, but undertook to advise the loan and to make the statement that he knew the other1 title to be good, saying nothing of his own. Undertaking to influence by his advice and statements, he was under obligations to know that his representations were true, at least so far as they affected his own title, and he could not set up his forgetfulness of his own claim in opposition
to Ms representation that the other was good. As was said in Knouff v. Thompson, 16 Pa. St., 364: “The law distinguishes between silence
and encouragement. Whilst silence may be innocent and lawful, to encourage and mislead another into expenditures on a bad or doubtful title would be a positive fraud, that should bar and estop the party, the author of that encouragement and deception, from disturbing the title of the person whom he misled by any claim of title in hiihself.”
We are of opinion that the evidence, taken at its strongest, was legally insufficient to establish either defense, and the judgments of the District Court and the Court of Civil Appeals are reversed and the cause remanded.
Reversed and remanded.