Watson v. Chalk

11 Tex. 89

• Court: Texas Supreme Court
• Decided: July 1, 1853
• Status: Published

Opinion

Lipscomb, J.

The defendant claims as an innocent purchaser for a valuable consideration, without notice. The appellant contends that the two first deeds, from Curtis to Smith and from Smith to Fletcher, being notarial acts, and before any registration law had been enacted, had the force and effect of records, and required no registration to be made of them; and such would be the correct conclusion, if the contest was between him and Curtis. But where the rights of an innocent purchaser intervene, we believe that the legal effect of the notarial act would be different. The Congress of Texas, in view, no doubt, of the loose manner in which sales of land had been made, and the evidence of such sales preserved by the interested party, on the 20th December, 1836, enacted as follows, “ Any person who owns or claims land of any descrip- “ tion, by deed, lien or any other color of title, shall, within “ twelve months from the first day of April next, have the “ same proven in open Court and recorded in the office of the “ Clerk of the County Court in which said land is situated; “ but if a tract of land lies on the county line, the title may “ be recorded in the county in which part of the said land “ lies.” (Hart. Dig. Art. 2754.) If the two deeds had been proven under the provision of this Act, and recorded in the county where the land was situated, the record would have been constructive notice to all subsequent purchasers. By failing to have them so recorded, they cannot avail themselves of this elder title, against a title subsequently made to an innocent purchaser for a valuable consideration. Nor can the deed, made by Fletcher to the plaintiff, avail; it was no notice, when recorded, that the title to the land had passed out of Curtis, the original grantee. Their neglect to have their deeds recorded, placed it in the power of Curtis to perpetrate a .fraud, that the Act, above recited, was intended to guard against. It is a well established rule of equity jurisprudence, that when one of two innocent persons must suffer, the loss must fall on the party who has been least diligent to prevent the fraud. Further discussion is unnecessary, the judgment of the Court below is affirmed.

Judgment affirmed.

Wheeler, J., not being present when the case was submitted, gave no opinion.