Renick & Frazier v. Dawson

Quinan, J. Com. App. This case is submitted upon an agreed statement of the facts and points of law involved, for adjudication thereon. [107] The facts are very meagerly stated, nor does a reference to the record afford much more information. Upon the first point made, we are of opinion that the conveyance to Brit Dawson by Mitchell, of the land in Navarro county, taken in connection with the fact that the land described in it was located by Mitchell by virtue of the Miguel Mata certificate, that the field notes, as in the deed, were duly entered in the surveyor’s books in Navarro county as a survey made under the Mata certificate, and that the deed also contains a transfer of the six hundred and forty acre certificate, is sufficient to establish the ownership of six hundred and forty acres in the Mata certificate in Brit Dawson. The deed, after a warranty of the certificate to Dawson, continues: “I do authorize the commissioner — the general land office to issue patent to said land to said Dawson, as assignee.” It is very obvious from this that the certificate meant in the deed is the Mata certificate, which had been, to the extent of six hundred and forty acres, located upon the land described; that the transfer of it is made to perfect the title to the land, and that the patent might issue to Dawson for the same land. Mitchell had sold the land as unpatented; that sale carried with it the certificate by which it had been located. Simpson v. Chapman, 45 Tex., 566. What certificate it was, notwithstanding the imperfect description in the deed, is made absolutely certain by reference to the field notes of the land. The transfer of a certificate for six hundred and forty acres upon which the commissioner of the general land office might patent the land to Dawson as assignee, could mean no other certificate than that by virtue of which it had been located and surveyed. The certificate, by its location, merged in the land. To describe the land was to identify the certificate by virtue of which it was located. Farris v. Gilbert, 50 Tex., 356. The fact that the location was afterwards lost or aban [108] doned could not have the effect to divest Dawson of his title to the certificate, or rather to his interest to the extent of six hundred and forty acres in it. 2. Dawson, then, was unquestionably the owner, and by a transfer in writing of an interest of six hundred and forty acres in this Mata certificate. It does not appear from the case stated in whose possession the certificate was; whether actually held by Mitchell, or remaining in the surveyor’s office, or in the general land office, or in the hands of Mitchell’s assignee, or Carter, or Eenick. There is nothing to show whether any delivery was made of it by any vendor. The transfers from Mitchell down to Eenick are all written transfers and are recited in Eenick’s patent. Whatever right the true owner of a land certificate may have as against one holding the actual possession of it in good faith, accompanied by a written transfer, need not be discussed. We should certainly hesitate to apply in such case the rule cited by appellee from Dodd v. Arnold, 28 Tex., 101, “that the good faith of the purchaser cannot invest him with title to the property if his vendor had none.” It is very often said in our reports, that an unlocated land certificate is personalty, and may be assigned and transferred as such, by parol. Simpson v. Chapman, 45 Tex., 566. But it is not to be inferred from this that all the incidents attach to such transfer which belong to sales of personal property generally, and that the validity of the sale depends not on the good faith or innocence -of the purchaser, but on the fact whether the vendor was the true owner of the property. On the contrary, we believe, as is said in Smith v. Sublett, 28 Tex., 170, “that a certificate to land unlocated is not an instrument the title to which passes by delivery; the presumption is that it belongs to the assignee, and not to the one, in 'whose possession it may be found,” and that a written transfer is necessary to pass the legal title to it. 3. But whether a written transfer is essential or not, [109] the fact being that all the transfers of the Mata certificate are in writing, the same rules will apply in considering the question whether Renick can be considered a purchaser in good faith, and how far he is chargeable with notice of the title of Dawson to six hundred and forty acres of the certificate, as if the title could only pass by written conveyances. Wade on Notice, 133. 4. The general rule is, “if a fact is recited in a deed through which a party claims' title to land, he is held to have notice of that fact.” Willis v. Gay, 48 Tex., 469. Renick’s patent recites the transfers frpm Mitchell to Smith, who was his assignee in bankruptcy. He is chargeable, therefore, with knowledge that the title he acquired to the Mata certificate was derived through a sale of the bankrupt’s effects by his assignee in bankruptcy. It is well settled that a purchaser at a bankrupt’s sale acquires no greater estate than the bankrupt had. Bump on Bankruptcy, 471; Anderson v. Miller, 7 S. & M., 587. And one who derives his title under that sale can have no better claim. Mitchell, the bankrupt, did not own the six hundred and forty acres which he had previously transferred to Dawson, of the Mata certificate, and did not claim to own it. His sworn schedule sets out that he claimed but ninety-four acres of the certificate. The purchaser at the sale, therefore, did not buy this Dawson six hundred and forty acres. He received but a quit-claim deed. He took the certificate subject to all the equities to which the thing purchased was subject in the hands of the bankrupt. Mitchell could not dispute Dawson’s title; and as against Renick and Frazier, claiming under Mitchell’s assignee, Dawson’s right must be held indisputable. Dikes v. Miller, 24 Tex., 417; Rogers v. Burchard, 34 Tex., 441; Taylor v. Harrison, 47 Tex., 461; Harrison v. Boring, 44 Tex., 255; 3 Washburn R. P. 356. [110] It may be remarked that the agreement, as respects the purchase by the appellee of the certificate or unlocated balance thereof, does not negative the idea that Eenick and Frazier had knowledge of the claim by Mitchell to own but ninety-four acres of it. It only asserts that they had no knowledge of Dawson’s claim, but is perfectly consistent with the fact that they knew that Mitchell had no title .to more than ninety-four acres of it, though they may not have known to whom the residue belonged. Six hundred and forty acres, then, of the Mata certificate being the property of Dawson when located by the appellees, the land upon which it was located vested in Dawson, and, when patented to Eenick, he holds the same and is chargeable as a trustee for Dawson to the extent of his interest. Simpson v. Chapman, 45 Tex., 566; Keyes v. H. G. & I. R. Co., 50 Tex., 171. That the patent issued to Renick does not preclude Dawson from the assertion of his right to the land. Mitchell v. Bass, 26 Tex., 372; Wheat v. Owens, 15 Tex., 241. We are of opinion, therefore, that the judgment ought to be affirmed. Affirmed. [Opinion delivered April 26, 1881.]