Rodgers v. Burchard

Walker, J. This was-an action of trespass to try title, brought by appellant' against the appellees. It appears that in September, 1835, one J. G. Gafford obtained a headright grant of a league of land from the government of Coahuila and Texas. On the twelfth of January, 1836, he conveyed to William'H, Steele one-half of the league, and on the second of February of the same year Steele sold and conveyed, the half league to A. F. Burchard, the,- ancestor of the appellees.- Neither of these deeds were recorded. [451] J. 0. Gafford, in the same year, sold the northwest half -of his headlight league to Sumner Bacon, which deed was recorded. In May, 1843, the west half of the league was conveyed by -one Hitchcock, as curator for Gafford, under a decree of court, to one Henry; which deed was also recorded. J. C. Gafford died in 1845 or 1846. In 1858 the heirs of J. 0. Gafford conveyed by a quit claim deed all their “right, title .and interest ” in the headright league to the appellant Rodgers. There are ether facts contained in the record which it is not -deemed necessary to notice. The deed from J. -0. Gafford to Wm. H. Steele divested Gafford -of all the title he had in the land which was conveyed by it, and although the deed was never recorded,.he had no fee remaining in .the land, and none could descend to his heirs at his death ; and a .subsequent purchaser from the heirs could' acquire ns further or other interest in the land than was possessed by his grantors. It follows that the deed from the heirs of J. 0. Gafford to the appellant Rodgers conveyed nothing, for they had nothing to convey. There is, perhaps, no instance found where any respectable court has held it possible for an estate fairly sold and paid for, to revert .to the grantor from the mere laches or neglect of .the grantee in having his deed recorded. It is held in this State that a subsequent deed, for a valuable consideration paid, and without notice, which has been duly recorded, shall take precedence of a prior unrecorded deed. (See Watkins v. Edwards et al., 23 Texas, 443.) But in this instance both parties claim from the same grantor; .and the last purchaser being innocent of 'fraud, the equities are equal, and then equity rewards the diligent and careful man. (See McCannot v. Patterson, 39 Mo., 110.) The court decide in a case similar to the one at bar, that under the registry laws, which are similar to our own, “ an unrecorded deed was good to pass the title as against the grantor and his heirs, and would he [452] void only as against subsequent purchasers without notice, from the same grantors.” By the rule in Shelly’s case, which is recognised as the law in Texas, “ a deed to A. B. and his heirs vests the fee in A. B.; and if A. B, sells the estate, he sells that which belongs to him and his heirs, unless, by the terms of his deed, he leaves the fee to vest as an estate in remainder to his heirs or to any other remainder man.” There are manifestly good reasons for this rule of law, and especially do they apply where the alienation of estates is entirely free, and there are no forced heirships. (See 4 vol. Kent’s Commentaries, 456; Jackson v. Burgott, 10 John., 462.) An unrecorded deed conveys all the title of the grantor, and he has no longer any interest in the estate ; nor can any interest descend to his heirs. , (Davis v. Ousley, 14 Missouri, 170; Valentine v. Havnor, 20 Missouri, 133; Hill v. Meeker, 24 Connecticut, 211; Whittington v. Wright, 9 Georgia, 23.) The deed from the heirs of Gafford to Rodgers was a quit claim deed, and could only convey such interest as they had the time of making the deed, and they had none. (See Bragg v. Paulk, 42 Maine, 517.) The court here say, “ their deed gave them the right, " title and interest of their grantor, and they can only be regarded as purchasers, for a valuable consideration, of such right, title and interest.” A quit claim, or deed,of release of all one’s right, title and interest, purports to convey,-and does convey, no more than the present interest of the grantor; and does nqt operate to pass an interest such as may afterwards vest. (Morse v. Godfrey, 3 Story’s C. C. Rep., 365; Van Rensalaer v. Kerney, 11 Howard, 322.) “ A deed which simply purports to pass the right, title and interest of the grantor will not exclude the operation of a prior-unregistered mortgage,” (42 Maine, 502.) “ To enlarge the interest by construction would he to make a different contract from that which the parties have entered into ¡ [453] would be, by judicial interpretation, contrary to the face of the deed and the facts on which it is founded, to pass the entire estate, by investing it with the consequences of a fraudulent sale of the' whole.” “ The case of Oliver v. Piatt, 3 How., U. S. 410, which is cited with approval in 11 Alabama, 1067, fully sustains us in the position, that the bank, holding a mere quit claim deed, cannot be regarded as a bona fide purchaser for a valuable consideration, without notice.” (Smith’s heirs v. Bank of Mobile, 21 Alabama, 124; see Farrer v. Patton, 20 Missouri, 81.) A purchaser at a judicial sale (as an execution, administrator’s sale, etc.,) takes only such interest as the debtor or decedent actually had. (Dwight v. Newell, 3 Comstock N. Y. R., 185; 4 Watts, 473; Baldwin v. Osterman, 6 Wallace U. S., 117-119.) Do these parties come within the strict rules governing the plea of innocent purchasers ? The appellant’s pleadings clearly are insufficient when tested by the following authorities: See Story’s Eq. Pleadings, § 805, Redfield’s edition; Hill v. Trustees, Mar., 512, 514; 9 Vesey 32; 1 Verm., 246. In Watkins v. Edwards, 23 Texas, 447, which is the -leading case in our Reports on the subject, the court say that a party who desires the benefits accorded to innocent purchasers,must show, first, that he was a bona fide purchaser; second, that he purchased without notice, actual or constructive; third, that he paid the purchase money, and this he must show independent of any recital in his deed. It is shown by the evidence that the land in controversy is of great value. The witnesses differ in their estimates from ten thousand to forty thousand dollars. It is only claimed that the heirs of Gafford received for their quit claim deed about six hundred acres of post oak land, worth only about one dollar per acre; and it is not shown by any proper evidence in this case that the post oak land was ever deeded to them. [454] For the reasons given the judgment of the district court is affirmed. Affirmed.