Sanburn v. Matilda M.

COLLARD, Associate Justice. Action of trespass to try title, brought in the District Court of El Paso County on the 7th day of September, 1888, by the appellant, Mary D. Sanburn, against the appellees, Matilda *631 M. Schuler and her husband, H..B. Schuler, to recover an undivided half of lots 6, 7, 8, 9, and 10, in block 44, in the city of El Paso, according to the Hart survey. Defendants answered not guilty; and specially, that Matilda M. Schuler is the owner of the lots in her own separate right; that she acquired the same on the 13th day of September, 1887, by purchase from David Boyle for 81550, paid by her to him, and that he on that date conveyed the same to her by warranty deed, duly recorded in El Paso County; and that Boyle acquired the same on the 20th day of July, 1887, from Mrs. B. F. or Tina Deal, by her warranty deed, for the consideration of 81550 cash paid by him to her, which deed was also duly recorded in El Paso County. Defendants ask that Mrs. Tina Deal be made a party defendant, and in case of recovery by plaintiff, that defendants have judgment over against her; but Mrs. Deal was not served with citation and did not become a party. The court below, no jury being demanded, gave judgment for defendants on the 19th day of May, 1890, from which plaintiff has appealed. We find the facts as follows: Barron F. Deal and Tina Deal were married in December, 1883. Barron F. Deal died in May, 1885, having no children, his wife surviving him. There was no administration upon his estate. Plaintiff, who resides in Missouri, is a sister of deceased, and his only heir at law besides his wife. On January 1, 1885, Barron F. Deal purchased the lots in suit from R. McKie, the latter executing to him a warranty deed reciting a consideration of 81000 in hand paid to him, the deed stating nothing further as to consideration. This deed was duly recorded in El Paso County on the 1st day of January, 1885. Mrs. Tina Deal, on the 20th day of July, 1887, conveyed the lots to David Boyle, by warranty deed, reciting a consideration of 81550 paid, which amount was in fact paid to Mrs. Deal as alleged by defendants, ■which deed was duly recorded in El Paso County July 22, 1887. David Boyle, on the 13th day of September, 1887, conveyed the lots to Matilda M. Schuler, defendant, by general warranty deed, reciting a consideration paid by her of 81550, which sum was in fact paid at the time ■of the purchase. Barron F. Deal paid for the lots out of his separate estate at the time he bought from McKie; that is, the latter conveyed him the lots and gave him 8250 in money for his half-interest in a newspaper, the El Paso Herald, which half-interest in the paper he acquired in 1881, before his marriage. Neither Boyle nor Mrs. Schuler had any actual knowledge of the fact that Deal’s separate property was used to pay for the lots, at the time they respectively purchased, and had no notice of any kind as to the con *632 sideration paid, except what may have been given by the recitals of theMcKie deed; nor did either of them have any knowledge of plaintiff or-her relationship to Deal. They knew nothing of these facts until about the time process in this suit was served. The court below gave judgment for Mrs. Schuler, upon the ground that she and her vendor, Boyle, were innocent purchasers. Appellant contends, that the doctrine of “innocent purchaser” does-not apply in a case like this; that upon the death of Deal, without children, the lots being his separate estate, and there being no administration-upon his estate, the title thereto vested immediately in his heirs at law, one-half to his surviving wife and the other half to his sister, the plain tiff- This is the rule of descent in this State (Revised Statutes, article 1646) ? and unless some equity intervenes, the title cast by such descent must prevail, and plaintiff should recover. It is also provided by statute, that in case of the death of the husband or wife without child or children, the title to their community estate is-cast upon the survivor. Rev. Stats., art. 1653. Upon the face of the deed to -Deal, the lots appeared to be community, and as to persons dealing with the apparent owner in good faith for a. valuable consideration, without notice, actual or constructive that it was-the separate property of Deal, it would be held to be community. Inotlier words, such persons would be innocent purchasers. Where the children of a deceased father sued to recover land of persons-who claimed through deed by the surviving wife, and the title was apparently in the community, it was held, that such persons paying value without notice that the land was the separate property of the father, would be protected as to one-half of the land as innocent purchasers; and if the sale by the surviving wife had been to pay community debts, defendants would be innocent purchasers for all the land. Word v. Box, 66 Texas, 596. One Putnam purchased land with community funds during coverture, in 1845, the deed to which was lost; the wife died in 1846, leaving children, after which Putnam procured from the vendor another deed to himself, which made no reference to the original deed, but recited that the consideration was paid by him at the date of the last deed; Putnam conveyed part of the land for value to one who had no notice of the original transaction out of which the equities of the children arose; it was held, that the vendee of the father, in whom the title seemed to be in his separate right, was an innocent purchaser, and entitled to recover against the heirs of the mother. Pouncey v. May, 76 Texas, 565, 566. John W. Stewart died intestate, leaving a wife and only daughter. He owned lands which he had in his lifetime and during coverture, paid for with his separate means, but the deeds gave no notice of such fact. After his death the surviving wife became indebted, and to secure the- *633 debt executed a deed of trust to her creditor upon the lands, the creditor-having no notice of the facts which constituted the land the separate estate of her husband. In a suit by the daughter,» his only heir, it was held, that the creditor, who had bought the lands under the trust deed, was entitled to recover one-half of the land; that is, what by the deed to the husband and father apparently made community property. Kirby v. Moody, 84 Texas, 202. Upon the same principle, if there had been no child surviving, the creditor would have recovered all the land, as the law would in such case have cast the title to all the apparent community upon the surviving wife. In the foregoing case, the court adopts and applies to the case the doctrine announced in Cooke v. Bremond, 27 Texas, 457, which was a sale by the husband, during the life of the wife,- of apparent community land, though in fact the wife’s separate property, acquired by gift. Thus we see there is no distinction as to a sale of such property by one-apparently authorized to sell, whether made before or after the death of the equitable owner, and that the purchaser will be protected in one case as well as the other. The fact that the title of the equitable owner has vested by death in an heir, is entitled to no more consideration than when it existed in such owner before death. French v. Strumberg, 52 Texas, 109, 110; Wallace v. Campbell, 54 Texas, 88, 89; Parker v. Coop, 60 Texas, 114, 115; Kirk v. Navigation Co., 49 Texas, 215; Rousel v. Stanger, 73 Texas, 671. We do not think it is at all material whether Boyle or Mrs. Schuler knew that plaintiff was a sister of Deal or not at the time of their respective purchases, and it is not necessary to decide that a purchaser could or could not be protected by ignorance of the existence of heirs other than the one conveying. The community, as it appeared to be, descended to Mrs. Deal upon the death of her husband without children, and a purchaser from her in such case, paying value and having no notice-that it was not community estate, would be an innocent purchaser. But appellant says that Boyle and Mrs. Schuler were put upon inquiry of the facts that the lots were the separate property of Deal. There is nothing in the deed that suggests the existence of any such fact; on the contrary, the deed upon its face is such a deed with an expressed money consideration as would, if true, constitute the lots the community of Deal and wife. Boyle was not bound to inquire of the vendor, McKie, because he lived in El Paso at the time of the purchase, in order to ascertain a fact not remotely indicated in the deed. No facts were communicated to Boyle or to Mrs. Schuler by the deed, or through any source, that gave notice of Deal’s separate rights, or that put either of them upon inquiry. Kirk v. Navigation Co., supra; Cooke v. Bremond, supra; Montgomery v. Noyes, 73 Texas, 203. *634 The judgment of the court below is fully supported by the evidence, and is the only legal conclusion that could have been reached therefrom, and it is affirmed. Affirmed. Delivered April 26, 1893. Motion for rehearing overruled. Error refused.