Bremer v. Case

Willie, Chief Justice. The first error assigned—which is the the only one we deem it necessary to notice—is; “The court erred in rendering judgment for the defendant, the plaintiff having shown a complete chain of title from the sovereignty of the soil, and the defendant having failed to prove the payment of a valuable consideration, so as to make him an innocent purchaser without notice.” We think this assignment well taken. “To entitle a subsequent vendee to have a prior unregistered conveyance postponed to his subsequent conveyance it must appear; 1st. That he was a purchaser bona fide. 2d. That he purchased without notice, actual or constructive, of the title of the prior vendee. It must appear that the purchase money was bona fide and truly paid; a re [153] cital of that fact in the deed is not sufficient. It must be proved by evidence independently of the recitals in the deed.” Watkins v. Edwards, 23 Tex., 448. See, also, Hawley v. Bullock, 29 Tex., 222; Lacoste v. Odam, 26 Tex., 458. To say nothing of the failure to prove want of notice of the prior unrecorded deed against which Deffenbaugh set up the defense of innocent purchaser, there was no evidence that either he or his vendee had ever paid any portion of the purchase money. It is urged that so great a length of time has elapsed since the deeds to Deffenbaugh and his vendor were made that payment of the purchase money will be presumed. We know of no authority for this view of appellee’s counsel, and none is cited in their brief; and it would seem especial ly noticeable in this case, when the fact of the payment of the money to Kincheld should have been within the knowledge of the appellee, as he must have paid it himself. He was a witness in his own behalf, and could easily have stated whether or not he paid the purchase money recited in the deed to have been received from him, although the transaction had occurred more than twenty years before. He could at least have given his best recollection about the matter. The question of stale demand did not enter into the case. Deffenbaugh had never been in possession of the land. He did not even record his deed from Kincheld for more than twenty years after it was executed, and Bremer, so far as the proof shows, was wholly ignorant of any claim to the land on his part until about two months before he filed this suit. The plaintiff in this case holding, as he does, a legal title, and seemingly the best right to the land, stands in a very different attitude from the appellants in the case of Johnson v. Newman, 43 Tex., 628, cited as authority in the brief of appellee’s counsel. There the plaintiffs sought equitable relief against what was apparently the better title of the defendant, and it was properly held that the burden was on them to show a failure to pay the purchase money or other defects or want of equity in the title they had attacked. For the error of the court as indicated above the judgment is reversed and the cause remanded. Reversed and remanded. [Opinion delivered October 12, 1883.]