Thompson v. Westbrook

Watts, J. Com. App. In Dunlap v. Wright, 11 Tex., 597, the court, after citing numerous cases bearing upon the point then under consideration, remarked that “The effect of the principles of these cases is that the vendor’s [267] deed may be absolute; yet if a mortgage for the purchase money be given back at the same time, the fee will absolutely remain in the vendor.” Chief Justice Moore, in commenting upon the doctrine of Wright v. Dunlap in the case of Burgess v. Milliken, 50 Tex., 403, said: “But though seizin or title vests in him (the vendee) by the deed, it is nevertheless lost to or divested out of him by his refusal or failure to comply with the terms or conditions upon and by which it was acquired.” However much, as an original proposition, we might be inclined to the opinion that a deed absolute upon its face and executed according to law would vest in thevendee the fee or title to the land, notwithstanding the simultaneous execution of a mortgage to secure the purchase money, it must be admitted that the doctrine of Wright v. Dunlap is too firmly settled by judicial decision to be now questioned. If, as claimed by appellants, Brick executed and delivered to Mrs. Rudder the mortgage at the same time she executed to him the deed, then, notwithstanding the failure to have the same recorded, when he made default in the payment of the purchase money, as between them, she undoubtedly had the right to treat the sale as at an end, and to resume the ownership of the land and to convey it to another. Yet if the appellee, without notice actual or constructive of the existence of the mortgage, or the subsequent deed of Mrs. Rudder to Jenkins, or the intervening rights of the appellants, purchased the land of Brick and paid him a valuable consideration therefor, she would, as against the appellants, acquire the superior title. Lee v. Wharton, 11 Tex., 61; Watkins v. Edwards, 23 Tex., 443; Lacoste v. Odam, 26 Tex., 458; Henderson v. Pilgrim, 22 Tex., 464. The' fact that some of the mesne conveyances under which appellants claim may have been recorded, if such [268] was the fact, prior to appellee’s purchase, would not constitute constructive notice to her of any adverse claim. Watson v. Chalk, 11 Tex., 89. Hence the real issue upon the trial in the court below was, whether or not appellee, at the time of her purchase, had actual notice of this adverse claim to the land. [Opinion delivered February 24, 1882.] Assuming that the burden of proof was upon her to show a want of notice, and all the other essential facts to make her an innocent purchaser for value and without notice, an examination of the evidence disclosed by the record clearly shows that this was done by appellee. It is shown that she purchased the land upon the faith of the record, without notice actual or constructive of any adverse claim, and that she paid a valuable consideration therefor in cash. In short, the evidence clearly shows every fact that was necessary to bring appellee within the rule of an innocent purchaser without notice for a valuable consideration. Manifestly she secured by her purchase from Brick the superior title to the three hundred acres against appellants. In regard to the other questions presented by the assignment, suffice it to say that they were not such errors as would or could affect the judgment. We conclude that the judgment ought to be affirmed. Affirmed.