Garner v. Boyle

*463 BBOWH, Associate Justice. This is a certified question from the Court of Civil Appeals of the First Supreme Judicial District. The statement and question are as follows: “In the above styled cause pending in this court on appeal from the District Court of Harris County, the record shows that on January 8, 1901, appellant, Mrs. Anna M. Paschal, joined by her husband, executed and delivered to appellee, John T. Boyle, the following power of attorney: “ 'State of Texas, County of Harris. Know all men by these presents: That we, Annie M. Paschal, joined by her husband, John S. Paschal, residents of the city of Houston, Harris County, Texas,'have made, constituted and appointed, and by these presents do make, constitute and appoint John T. Boyle our true and lawful attorney for us, and in our name, place and stead, to ask, demand, recover and receive all and any lots, parcels or tracts of land, located and situated in any county in the State of Texas, belonging and being the separate property of Annie M. Paschal; and we do hereby authorize our said attorney to institute in our name any and all suits that may be necessary to be instituted in that behalf, giving and granting to our said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as we might or could do if personally present, hereby ratifying and confirming whatsoever our said attorney shall and may do by virtue hereof in the premises. “ 'And we do hereby agree and by this instrument hereby bargain, grant, sell, alien and convey a one-half interest in and to all these certain lots, parcels or tracts of land, located and situated in any county in the State of Texas, belonging to the separate estate of Annie M..‘ Paschal, said interest being transferred and conveyed for "the services heretofore rendered and hereafter to be rendered by the said John T. Boyle; it being expressly understood that the said John T. Boyle will personally be responsible and pay all expenses connected with the recovery of said lands. “ 'Witness our hands at Houston, this the 8th day of July, A. D. 1901. (Signed) '"John S. Paschal. '"Annie M. Paschal/ “At the time this power of attorney was executed Mrs. Paschal claimed to own various tracts of land in Polk and San Jacinto counties, including the land in controversy in this suit. The deed records of San Jacinto County where the land in controversy is situated, showed the title to he in Arthur P. Garner, deceased, and Mrs. Paschal, as the heir of said Garner, became the owner of same as her separate estate. “There were conflicts in the boundary lines of this land and adjoining *464 surveys, and the owners of said adjoining surveys were asserting claims to the land adverse to Mrs. Paschal. Acting under said power of attorney, Boyle went to San Jacinto County and had the land claimed by Mrs. Paschal surveyed and its boundaries established and secured quitclaim deeds from the adverse claimants which he placed upon record. In addition to the labor and time expended by him in clearing Mrs. Paschal’s title to the land in controversy and other lands claimed by her, he incurred expenses in the sum of $1000 or more, which he paid. After clearing Mrs. Paschal’s title to the land in controversy he sold and conveyed the one-half interest therein conveyed to him by the power of attorney to the appellee McMurry. The deed from Bojde to McMurry is not a quitclaim but a conveyance of the land, and the cash consideration of $400 recited in the deed was paid by the vendee. “In 1895 Mrs. Paschal conveyed all of the land owned by her in Polk and San Jacinto counties to appellant, F. T. Garner, in trust for the use of the then minor children of the vendor, who are also appellants herein. This deed was not placed upon record until 1902, some time after the conveyance from Boyle to McMurry. Neither Boyle nor McMurry had any notice of this conveyance or of any claim to the land by the trustee or beneficiaries in said trust deed until after McMurry had purchased the land. “This suit was brought by Mrs. Paschal and her husband and F. T. Garner and the beneficiaries in said trust deed against Boyle and McMurry to cancel the power of attorney and the deed from Boyle to McMurry and recover the land thereby conveyed. The defendants filed separate answers and each pleaded that he had purchased the land for a valuable consideration and without any notice of appellant’s claim. “This court on the 10th day of December, 1903, affirmed the judgment of the court below in favor of defendants on the ground that the appellee Boyle, having performed his contract under the power of attorney without any notice of the claim of appellants under the unrecorded deed, could hold the interest in the land conveyed to him by the power of attorney as an innocent purchaser. On the 7th day of January, 1904, we overruled a motion for rehearing, but our attention having since been called to the decision of this court in the case of Patrick v. Badger, 41 S. W. Rep., 539, we have set aside our order overruling the motion for rehearing and respectfully certify for your decision the following question: “Do the facts in this case support the defendants’ pleas of innocent purchaser ?” We answer the question in the affirmative. The services rendered by Boyle under the contract constituted a valuable consideration sufficient to support the plea of innocent pur *465 chaser as to the land in question, there being no notice actual or constructive to him of the former conveyance. The second paragraph of the contract conveyed to Boyle an undivided one-half interest in all the lands, lots, etc., in the State of Texas, “belonging to the separate estate of Annie M. Paschal.” The conveyance took effect upon its delivery and was not executory in its character of a conveyance. Witt v. Harlan, 66 Texas, 660; Taylor v Taul, 88 Texas, 665. The phrase, “belonging to the separate estate of Annie M. Paschal,” was intended to and did distinguish the land conveyed from that which might belong to her husband, and did not have the effect to qualify the conveyance. If the conveyance had been of the entire interest of all lands in Texas, the case would be strictly within the authority of Wift v. Harlan, before cited, in which ail of the lands were conveyed, and this court held that it was operative to pass the entire title to all of the land that the party had in this State. There can be no substantial difference in the legal effect of a deed which conveys an undivided one-half and another that conveys the whole, except as to the quantity of land conveyed. Under article 4640, Revised Statutes, all conveyances of land that aré not recorded as required by law are void as to subsequent purchasers for value without notice. To Boyle all land which the record showed to be the property of Mrs. Paschal was land belonging to her “separate estate” unless a conveyance from her appeared upon the record, or a knowledge of it was otherwise brought home to him. Such deed being void as to him was as if no deed had existed. White v. Prank, 91 Texas, 72; Hitchler v. Scanlan, 15 Texas Civ. App., 40. There being nothing in the terms of the conveyance which indicated that Mrs. Paschal might have sold any of her lands in Texas and nothing to suggest to Boyle that her title, as it appeared upon the record, was not true and correct, the conveyance had the effect to vest in him one-half interest of all the- land which the record showed to belong to her at the time. In Patrick v. Badger, 41 S. W. Rep., 539, referred to by the court in the certificate, the honorable Court of Civil Appeals held that the claim of innocent purchaser could not be maintained under a verbal contract for the sale of the land because it could not be superior to a quitclaim deed. That case was rightly decided and does not conflict with our answer to this question. Associate Justice William" not sitting.