Hutchins v. Chapman

Ogden, J. The appellee in this ease claims title to the land Í in controversy, by virtue of a sheriffs sale and deed made in 1868, upon a judgment rendered in June, 1866. It is claimed for appellant that the sheriffs deed is void, and no defense to this action, for two reasons; first, that the judgment, to satisfy i which the sale was made, was void for want of jurisdiction in the court which rendered it. A plea to the jurisdiction of the court, in the ease of S. S. Kirby v. Samuel, might have been made available upon the trial of that cause, had it been interposed at the proper time; but we do not think that plea can now be heard in this cause (and especially when presented in this court for the first time), for the reason that the suit was instituted in Austin county, and the record there disclosed the fact, and parties are chargeable with notice of whatever that record contained. Besides, the question of jurisdiction was a matter between the parties to the suit, and may have been waived. (Ryan v. Jackson, 11 Texas, 391.) We are clearly of the opinion, that the institution of suit for the foreclosure of a vendor’s lien, and its pendency in Austin county, would operate as constructive notice of a lien on lands situate in that county. But it is claimed that the Kirby judgment was dormant, and that an execution and sale upon that judgment were void, and conveyed no title. The judgment was rendered in June, .1866, and in November of that year an act of the Legislature was passed, providing that no judgments of a court of record shall become dormant unless ten years shall have elapsed between the issuance of executions. This act was under consideration by this court in Scogin v. Perry, 32 Texas, 21, and in Phillips v. Lesser, 32 Texas, 32, in which it was decided that a judgment would not become dormant until the expiration of ten years, though no execution had issued. The Kirby judgment was but a few months old and in full force, on the passage of the act of November, 1866 ; that act would therefore apply as well to the Kirby judgment as to any subse 615 quent one. But in Phillips v. Lesser, it is decided that the stay laws prevented judgments from becoming dormant. The Kirby judgment must, therefore, be regarded as prima facie a valid and subsisting judgment in 1868, at the time of the sale made under it, and the purchaser at that sale received a good title, unless other rights and equities have intervened to defeat it. But appellant claims that he is an innocent purchaser for a valuable consideration, without notice, and that therefore, in equity, he should be protected in his purchase. This is the only material question presented in the record, which requires further notice. Appellant claims that he is a bona fide purchaser, and yet he testifies that he took the land for a debt, and agreed to re-con vey the property to his vendor on the payment of the purchase-money and interest. In other words, appellant agreed to re-con vey the land on payment of the preexisting debt. This, in contemplation of law, was no purchase, but a simple pledge or mortgage, to secure the debt. But had the conveyance to appellant been absolute, without any promise to re-eonvey, there was no such consideration paid as would support the plea of being an innocent purchaser for a valuable consideration. There was no consideration passed at the making of the deed to appellant, and he could not be injured by its cancellation, as he would then be in the same position as before the execution of the deed. We believe that the authorities are without conflict in holding that, in order to constitute an innocent purchaser, such as courts of equity would protect against prior liens, the consideration must have been paid at the time of the execution of the deed, or before notice of any prior rights or equities. (Fraim v. Frederick, 32 Texas, 39; Story’s Equity Jurisprudence, 64, 108, 154; Leading Cases in Equity, Vol. II., p. 79.) Had appellant, however, purchased the land absolutely, and paid the purchase-money, yet he is not entitled to protection from. a court of equity against the deed of appellee. He purchased after a suit to foreclose the vendor’s lien had been pending in the District 616 Court of the county where the land lies, for over five years, and the pendency of that suit was at least constructive notice to all persons, and he must be held estopped from claiming the benefits of an innocent purchaser without notice. There is no error in the judgment of the District Court, and it is affirmed. Affirmed.