Gilbough v. Runge

BROWN, Associate Justice. On the 19th day of March, 1889, H. J. Runge, being the owner of the land in controversy, conveyed it to F. M. Gilbough by warranty deed for a cash consideration, which was paid, and for two notes each for the sum of $525.00, due respectively in one and two years. The deed expressly retained the vendor’s lien to secure the payment of the two notes and each note recited that it was for part of the purchase money of the land. The deed showed the residence of Gilbough and Runge to be in Galveston County. The land was situated in Tarrant County, but -the deed from Runge to Gilbough was never recorded in that county. Before the notes fell due each of them was extended for one year by agreement between Gilbough and Runge. Gilbough never paid any part of- the principal of the notes, but paid the interest each year until 1898, since which time no interest was paid. After the notes fell due, Runge demanded each year the payment of them, when Gilbough would state to him that he had not sold the land but would pay him as soon as the land was sold, and induced Runge not to sue to foreclose his lien. The land consisted of two tracts, one containing 97.4 acres and the other 40 acres. For several years Gilbough rented the 97.4 acres to H. W. Bailey, and rented the 40-acre tract to M. W. Hampton. On August 31, 1894, Gilbough sold the 40 acres to Hampton and conveyed it to him" by warranty deed which was duly recorded, and Hampton went into the actual possession of the land and held peaceable, adverse and continuous possession of it, cultivating, using and paying taxes on it down to the institution of this suit. On October 30, 1894, Gilbough sold the 97.4 acre tract to Bailey and made him a warranty deed therefor, which was duly recorded, and Bailey went into possession of the land. This tract of land has by regular conveyances passed through a number of persons down to Louisa M. Hayes and her husband, S. W. *542 Hayes. All of the deeds in the chain of title were regularly recorded, each person to whom the land was conveyed took immediate actual, peaceable, adverse possession of the same and paid taxes on it down to the institution of this suit. When Bailey and Hampton bought they did not know from whom they purchased, the land being sold to them by a railroad agent at a station near where they lived, he being the same person who had rented the land to them for Gilbough. Neither Bailey nor Hampton examined or caused the records of the county to be examined to ascertain anything about the title—they did not see the deed from Eunge to Gilbough nor did they know its contents. At the time of the institution of the suit to foreclose the lien of the notes upon the land, Eunge did not know that Gilbough had sold it to any one or that any person was in the actual possession of it. Suit was first brought upon the notes against Gilbough, making Hampton and Hayes and wife parties, and all of the parties pleaded limitation against the notes, whereupon Eunge filed an amended petition in which he sought to recover the land, to which the defendants, Hampton and Hayes and wife pleaded the five years statute of limitations. The case was tried without a jury and judgment rendered that Eunge take nothing by his suit, which judgment was by the Court of Civil Appeals reversed and judgment rendered in favor of Eunge against all of the defendants. When Eunge conveyed the land to Gilbough, reserving a lien in the deed, the vendee acquired the right of possession and the right to transfer his possession and such title as he had to his vendees Bailey and Hampton, who, however, could acquire no greater right against Eunge than Gilbough himself had. The title of Bailey and Hampton was held by them in subordination to the right reserved by Eunge in the deed to Gilbough, and Bailey and Hampton were bound to take notice of the terms of the deed under which Gilbough held although it was not recorded and they actually knew nothing of it. Spencer v. Jones, 92 Texas, 519; Flewellen v. Cochran, 19 Texas Civ. App., 499; Clark v. Adams, 80 Texas, 674; Roosevelt v. Davis, 49 Texas, 472. If we assume that Eunge knew that Gilbough had sold the land to Bailey and Hampton, and that they were in possession, cultivating and improving it, we have the strongest case against Eunge that the evidence will support. What is there in this state of facts to notify Bunge that Gilbough’s vendees were holding and claiming the land adversely to him? In making the false representation that he had not sold the land, Gilbough did not repudiate the contract between him and Eunge, but, on the contrary, affirmed it by promising to perform it in the future, and such false statements do not militate against Bunge’s right of recovery. In taking possession of the land and improving .it, paying the taxes upon it and exercising absolute ownership over it, plaintiffs in error did not in any sense repudiate the superior title which remained in Eunge, because every act that they did was consistent with Eunge’s rights as they were expressed in the deed to Gilbough. Hampton and Bailey and those who claim under the latter, had a right to the absolute possession of the land; they had a right to improve it and it was their duty to pay the taxes. The evidence does not show an act *543 of any one of the claimants that he might not have done if he had actually known all of the facts. It did not devolve upon Bunge to inquire of Bailey and Hampton as to the right by which they claimed the land, nor to ascertain if they were informed of the facts and the right of Bunge, because he might well presume that the purchasers had informed themselves of all those things necessary for them to know to secure a good title to the land. It was the duty of Bailey and Hampton for their own protection, to investigate or cause to be investigated the title of the man from whom they purchased. The fact that they did not take that precaution and did not acquire the information which lay before them in the deed through which they claim title affords no support to their claim of a repudiation of Bunge’s superior title; they were by law charged with the knowledge of the contents of that deed. The hardship of this case arises out of the great negligence of plaintiffs in error and those under whom they claim in not informing themselves of the state of the title. If those who purchase land, will not use the means which the law provides, to inform themselves of the state of titles they seek to acquire, courts can not place the loss upon innocent parties, however hard the case may be. There is no error in the judgment of the Court of Civil Appeals and it is therefore affirmed. Affirmed.