author: CONLEX, C. J.

text:
    WALKER et al. v. KNOX.
    (No. 105.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 9, 1916.
    Rehearing Denied Dec. 7, 1916.)
    1. Property <&wkey; 10 — Seisin — Constructive Possession.
    Land, not in actual possession of any one, is deemed to be in the constructive possession of the legal owner, by virtue of his title.
    [Ed. Note. — For other cases, see Property, Dec. Dig. &wkey;»10.]
    2. Adverse Possession <5&wkey; 100(1) — Extent oe Claim.
    One claiming title by adverse possession, but not holding under color of title, acquires no title to any land except that which is in actual possession, and, under the 10-year statute of limitations, providing its requisites have been met, to 160 acres.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 547; Dec. Dig. &wkey;>100(l).]
    3. Adverse Possession <&wkey;100(l) — Extent op Claim.
    Generally, where a person enters into the occupancy of premises under color of title thereto, his possession is not considered as confined to the portion in his actual occupancy, but his possession is deemed to embrace all the land covered by the instrument under which he claims, provided no other person is in the actual occupation of the part not actually occupied by him.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 547; Dec. Dig. <&wkey;100(l).]
    4. Adverse Possession <&wkey;100(l) — Extent op Claim.
    Actual possession of part of premises under color of title will not draw to it constructive possession of the balance, unless such color of title is also accompanied by claim of title coextensive with the boundaries of the conveyance.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 547; Dec. Dig. <&wkey;>100(l).]
    5. Evidence <&wkey;273(2) — Declarations—Possession — Extent of Claim.
    Constructive possession may always be restricted by the acts and declarations of the occupant, indicating that he does not make his claim coextensive with the boundaries of his color of title.
    [Ed. Note — For other cases, see Evidence, Cent. Dig. §§ 1111, 1112; Dec. Dig. &wkey;273(2).]
    6. Tenancy in Common <&wkey;14 — Disseisin-Conveyance by One Cotenant — Adverse Possession — Color of Title.
    Where one tenant in common assumes to convey the entire estate and does convey it by metes and bounds, the deed will give color of title to the whole tract, and entry by the purchaser thereunder, claiming title to the whole, will operate as an actual ouster and disseisin of the cotenant.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 30-41; Dec. Dig. <&wkey;>
    7. Adverse Possession &wkey;>100(6) — Extent of Claim — Possession by Tenant.
    Within the rule that actual possession of part of a tract of land under color of title gives constructive possession to the extent of the boundaries designated in the conveyance, the possession of a part of a tract of land by a tenant of the holder of color of title, who has been put into possession under a lease which does not restrict his possession to any definite part of the tract, will give the lessor constructive possession coextensive with the boundaries of the conveyance, since the possession of the tenant inures to the benefit of the lessor.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 563-566, 568-571, 573; Dee. Dig. &wkey;J100(6).]
    8. Adverse Possession <&wkey; 100(4) — Extent of .Claim by Tenant.
    Possession by a tenant of a part of a tract under an instrument describing it specifically by metes and bounds does not establish his landlord’s constructive possession to the whole tract, but only to the tract described.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 557-559; Dec. Dig. <&wkey;> 100(4).]
    9. Adverse Possession <&wkey;71(2) — Color of Title — Defectively Acknowledged Deed —“Duly Registered Deed.”
    The five-year statute of limitations cannot be based on a defectively acknowledged married woman’s deed; it not having the character of a duly registered deed.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 417-421, 424-426, 428; Dec. Dig. &wkey;>71(2)J
    10. Tenancy in Common <&wkey;14 — Disseisin-Adverse Possession — Notice to Cotenant —Recorded Deed.
    Recorded deed to defendant of an entire tract, and instruments in defendant’s chain of title, in themselves undertaking in good faith to convey the entire tract of land to defendant’s grantor, including the interest of plaintiffs, constituted notice to such plaintiffs, who were cotenants of defendant’s grantor, that defendant was asserting adverse claim to plaintiff’s interest.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 30-41; Dee. Dig. <&wkey;> 14.]
    11. Adverse Possession <&wkey;31 — Notice of Adverse Claim.
    No real owner ought to be deprived of land under the statute of limitations unless he has actual notice of the adverse claim thereof, or constructive notice based upon the open, hostile, and notorious assertion of claim and possession by the adverse claimant.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 128-133; Dec. Dig. &wkey;> 31.]
    12. Tenancy in Common <&wkey;15(2) — Adverse Possession — Notice to C'otenant — “Watching Over.”
    Recorded deeds to a tract of land with possession by tenant of last grantee for more than 5 years under a verbal agreement, the landlord in the meantime claiming the land and paying the taxes thereon, the tenant testifying that he “watched over the entire tract,” was sufficient notice to cotenants of the immediate grantor to establish title under tbe five-year statute of limitations, since “watching over” anything is to be construed as preserving, preventing spoliation, encroachments, or trespasses, and having the right of and exercising control or dominion over anything.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 43; Dec. Dig. <&wkey;>15(2).]
    Appeal from District Court, Sabine County; A. E. Davis, Judge.
    Trespass to try title by Nora Walker and others against Hiram Knox. From judgment for defendant, plaintiffs appeal.
    Affirmed.
    J. W. Minton, of Hemphill, and W. D. Gordon and H. G. Russell, both of Beaumont, for appellants. E. J. Mantooth, of Lufkin, and W. F. Goodrich, of Hemphill, for appellee.
   CONLEX, C. J.

This is a suit in trespass to try title, filed in the district court of Sabine county on September 9, 1914, by the appellants, as plaintiffs, and against the appel-lee, as defendant, seeking to recover an undivided 177 acres interest out of a 354-acre tract in the William Isaacs survey in said county. The defendant, Knox, filed his answer in the usual form, and-pleaded the 3, 5, and 10 years’ statutes of limitation. The case was tried by the court without a jury, and judgment rendered against the appellants. Motion for new trial was filed in due season, and, same being overruled, an appeal was perfected to this court.

It appears from the record that on May 12, 1845, William Isaacs, the original grantee under the Mexican government, by warranty deed conveyed to William A. Donoghue 354½ acres of land out of said William Isaacs survey, describing the same by metes and bounds. Thereafter William Donoghue died, leaving surviving him his wife, Harriett A. Donoghue, and one son, Thomas J. Donoghue, the land in question being a part of the community estate of the said William A. Dono-ghue and his wife. The wife subsequently married R. J. Jennings. On March 15, 1871, Thomas J. Donoghue, the son, executed a warranty deed to R. J. Jennings, the stepfather, for the entire 354½ acres. On May 10, 1871, Harriett A. Jennings, being then the wife of said R. J. Jennings, executed a deed to her husband, in which she undertook to convey all her right, title, and interest in and to said land. This deed was not joined in by her husband, nor is it properly acknowledged, and therefore it did not accomplish the purpose of .conveying her title. This deed was recorded in the deed records of Sabine county on the 4th day of July, 1871. On the 10th of May, 1871, R. J. Jennings, joined by his wife, Harriett, undertook to convey the entire 354% acres of land to John H. Derrough. This deed was recorded in the deed records of Sabine county on the 4th day of July, 1871. The wife’s separate acknowledgment on this instrument is fatally defective. On the 19th of May, 1900, J. H. Derrough conveyed by warranty deed the same land to W. H. Knox, which deed was recorded in Sabine county on January 18, 1901. The appellee, Hiram Knox, a son of W. H. Knox, is now the owner of this title. It is to be seen that on account of these defects, the interest of Harriett A. Jennings did not pass under said conveyances, and that such conveyances only transmitted the legal title to an undivided one-half interest in and to the said 354½ acres. Thomas J. Donoghue, the son, died without issue in 1878. Harriett A. Jennings, by her second marriage, had two daughters, one of whom died without issue, and the other one, Cora, married Thomas W. Howth, and the appellants in this case are the children of said marriage. Both Harriett A. Jennings and her husband, R. J. Jennings, have long since departed this life.

The appellants in this case are entitled to recover, unless they are defeated, as was found by the court, under the plea of limitation based upon the 5-year statute.

The evidence is undisputed that in 1896 one W. H.' Garlington cleared and fenced up a portion of this land, how much is uncertain, but less than 15 acres, and made a crop on it for that year. He was a squatter on the land. In February, 1905, William Knox, finding him still there, and making a claim to his improvements by reason of his possession, entered into a verbal agreement with him, to the effect that he, Garlington, was to stay on the land and hold the 354% acres for him, Knox, as his tenant, for which he was to get a deed to that portion of the land covered by his, Garlington’s, improvements. Since the time of this agreement, Garlington has been holding the land as the tenant of Knox, ahd has made a crop on it every year since that time. Besides having his improvements fenced, he built a cotton house within the inclosure, and has been using the same to store his cotton and com. On October 4, 1910, 5 years and about 8 months after the original agreement of tenancy was made, the parties entered into the following written agreement: “The State of Texas, County of Polk.

“Know all men by these presents: That I, W. H. Knox of said county and state, did on the 5th day of July, 1905, let and lease to W. H. Garlington 354% acres of land off of the William Isaacs survey situated, lying and being in Sabine county, Texas, and described as follows: Beginning at the southwest corner of a survey made for Willis Donaho, and running thence south 81 East with Donaho’s line 830 vrs. to a corner, a stake, bearings S. 05 W. a pine 20 links 18 inches diameter S. 22’ W. 30 links a pine 6 inches in diameter, thence S. 9 Wi 2400 vrs. to a corner stake bearings N. 26 W. 11 vrs. 21 links, pine 18 inches in diameter north 60 east 10 links 18 inches. Thence N. 81 W. with the William Isaacs league line. Thence N. 9 E. with the William Isaacs league line to the beginning corner. And whereas., said W. H. Garlington has held said land in his possession for the said W. H. Knox ever since the 5th day of July, 1905, and is yet in possession of same by having about 15 or 20 acres enclosed and in cultivation; and, whereas, the said Garlington is now the tenant of the said W. H. Knox, and, whereas, the said W. H. Knox is desirous of compensating the said W. H. Garlington for his tenancy of said land: Therefore the said W. H. Knox does hereby obligate and bind himself to make to the said W. H. Garlington a deed for 26 acres of said land to include that portion of the said 354% acres of land now under fence and in cultivation by said W. H. Garlington, which 26 acres is described as follows, to wit: Beginning at the northeast corner of a 354%-acre survey off said league deeded by William Isaacs & wife to William A. Donahoe by deed dated May 1st, 1845. Thence north 18 west about 300 vrs. to a corner post oak and sweet gum marked X. Thence south 9 west 500 vrs. to corner, two post oaks marked X. Thence south 81 east to east line of said 354% acres. Thence north 9 east to the place of beginning. Which said deed to said 26 acres of land is conditioned as follows: That, whereas, there is now a suit pending in the district court of Sabine county, Texas, wherein W. H. Knox is plaintiff and M. E. MaeKeehney and others are defendants $1520%, pending in the district court of Sabine county, Texas, and whereas, said suit has never been tried or disposed of; and, whereas, the said W. H. Knox claims the 354% acres of land; and, whereas, the defendants in said suit claim one undivided one-half interest in said land: Now, therefore, if the said W. H. Knox shall recover in said suit, or otherwise establish his title to the said 354% acres of land, then the said W. H. Knox shall make to the said W. H. Garlington an absolute deed to said 26 acres of land above described. If, however, the said W. H. Knox does not establish his title to but one-half of the said 354% acres of land, then the said W. H. Knox will make an absolute deed to the said W. H. Garlington to an undivided one-half interest in said 26 acres of land, reserving, however, in any event, all the merchantable saw timber now standing, growing or being situated upon 26 acres of land or so much thereof as may be deeded to said W. H. Garlington by virtue of this contract.
“And I, the said W. H. Garlington, having examined the above and foregoing contract do hereby agree to all the stipulations and conditions therein contained and hereby agree to hold possession of the said 354% acres of land for the said W. H. Knox until his title shall have been established to the same or any part thereof, with the right to use so much of said land as may be inclosed and in cultivation free of any rental charges therefor other than to hold the said 354% acres of land as the tenant of the said W. H. Knox.
“Witness our hands on this the 4th day of October, 1910. W. H. Knox.
“W. H. Garlington.”

This instrument was duly ackno'wledged by both, parties, but is unrecorded.

Shortly after the execution of this instrument, the tenant, Garlington, without any notice to Knox, had a survey made of his improvements, the lines of which survey were not introduced in evidence, but which included, in any event, the 26 acres including his improvements, although it extended’ over on other lines than those constituting .the Knox land. Just before the above written instrument was executed, the 26 acres described therein was surveyed off at the instance of Knox, who instructed the surveyor to include in such survey the Garlington field, and to “square it up.”

Appellants’ first five assignments of error attack, in substance, the conclusion of the trial court that appellee was entitled to the land in controversy under the five-year statute of limitation. The first and second propositions submitted under these assignments are:

“The possession of W. H. Garlington as a tenant of appellee is insufficient, as adverse possession of the land in controversy, to sustain appel-lee’s plea of 5 years’ limitation, because prior to the lease from appellee to Garlington in 1905, Garlington had lived for 9 years upon a certain inclosed part of the land in controversy, claiming such part as his own, in his own right, and restricting his claim to such inclosed part. And upon the lease to him from appellee, nor thereafter at any time did Garlington or appellee, by either action, claim, or conduct, do anything to. denote or suggest any change in the extent or character of the claim of right upon which the possession of Garlington was based, or give notion in any way that he had begun to claim more than the restricted part that he had inclosed, or that he had ceased to claim the land in his own right, but was claiming the entire tract in controversy as tenant of appellee. But the character and extent of his possession and claim of right was identical with that which he asserted prior to his lease from appellee.”
“Appellee has not shown sufficient possession to sustain his plea of 5 years’ limitation, because the tenancy of W. H. Garlington, upon which appellee relies, is shown to have been under a lease contract restricting his right of occupancy, use, cultivation, or enjoyment to a certain designated portion of said land.”

The decisions on the question as to the extent of an adversary’s possession for the purpose of determining the amount of land to which the claimant has thereby acquired title by adverse possession are divisible into two classes, viz.: First, where the claimant is in possession without color of title; and second, where possession is under color of title.

Where land is not in actual possession of any one, the possession, by construction of law, is deemed to be in the legal owner; or, in other words, the legal owner, by virtue of his title, is deemed to be in constructive possession of all of the land, when there is no actual possession in another. Whitehead v. Foley, 28 Tex. 268.

One claiming title by adverse possession, but not holding under color of title, acquires no title to any land except that which is in actual possession, and, under the 10-year statute of this state, providing its requisites have been met, to 160 acres. Bracken v. Jones, 63 Tex. 184; Claiborne v. Elkins, 79 Tex. 380, 15 S. W. 395; Evans v. Foster, 79 Tex. 48, 15. S. W. 170; Craig v. Cartwright, 65 Tex. 413.

The general rule is well settled that where a person enters under color of title into the actual occupancy of part of the premises described in the .instrument giving color of title, his possession is not considered as confined to that part of the premises in his actual occupancy, but that such occupant acquires possession of all of the land embraced in the instrument under which he claims, provided, of course, there is no other person in the actual occupation of the part of the premises not actually occupied by him. Craig v. Cartwright, 65 Tex. 413; Whitehead v. Foley, 28 Tex. 266.

However, actual possession of a part of the land under color of title will not draw to it constructive possession of the balance, unless such color of title is also accompanied by claim of title coextensive with the boundaries of the conveyance. Ivey v. Petty, 70 Tex. 178, 7 S. W. 798; Bayne v. Denny, 21 Tex. Civ. App. 435, 52 S. W. 983; Pope v. Biggs, 43 S. W. 306; Noland v. Weems, 141 S. W. 1031; Village Mills Co. v. Houston Oil Co., 186 S. W. 785.

Adverse possession will not extend beyond the claim when such claim falls short of the boundaries contained in the instrument constituting color of title. Constructive possession may always be restricted by the acts and declarations of the occupant, indicating that he does not make his claim coextensive with the boundaries of his color of title. Haddock v. Leary, 148 N. C. 378, 62 S. E. 426; Village Mills Co. v. Houston, Oil Co., 186 S. W. 785.

Where real estate is held in common, and one tenant assumes to convey the entire estate, and does convey it by metes and bounds, the deed will give color of title to the whole tract, and an entry by the purchaser thereunder, claiming title to the whole, will operate as an actual ouster and disseisin of the cotenant. Rosborough v. Cook, 148 S. W. 1120.

Uhder a deed from Derrough to Knox, dated May 19, 1900, the appellee acquired color of title to the one-half interest, the legal title of which was in the appellants. And at this point it is necessary to inquire as to the nature of the entry of the appellee’s ancestor, Knox, and the nature and extent of the claim of the appellee and' his ancestor, Knox, to the land. If W. H. Knox had a tenant on the land claiming to the boundaries of the whole tract, and otherwise meeting the requirements of the 5-year statute of limitation there'would be an ouster and disseisin of the cotenant, and after the expiration of the required time, title by-limitation would ripen into a perfect title. For within the rule that actual possession of a part of a tract of land under color of title gives constructive possession to the extent of the boundaries designated in the convey-anee, the possession of a part of a .tract of land by a tenant of the holder of the color of title, who has been put into possession under a lease which does not restrict his possession to any definite part of the tract, will give the lessor constructive possession coextensive with the boundaries of the conveyance, since the possession of" the tenant inures to the benefit of the lessor. But on the other hand, if the lessee is let into possession of a part of a tract under an instrument describing it by metes and bounds, specifically the lessee’s possession is coextensive only with those metes and bounds, and such possession is not available to establish constructive possession of the landlord, to the whole tract. Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 94; Read v. Allen, 63 Tex. 154; Texas Land Co. v. Williams, 51 Tex. 51; Wier Lbr. Co. v. Conn, 156 S. W. 276; Robinson v. Jones, 2 Tex. Civ. App. 316, 22 S. W. 15; Village Mills Co. v. Houston Oil Co., 186 S. W. 785.

The witness, Garlington, touching upon his occupancy of the land, and his tenancy under Knox, testified, substantially:

“I know where the William Isaacs survey is. I know where that portion of it is that is claimed by Mr. Knox, being 354 acres of land. That survey is somewhere about 300 or 400 yards from my house. I have some of that survey inclosed, in cultivation, in possession. There is somewhere about 15 acres of it inclosed, maybe a little more. As to how I am in possession of it, will say I am on it as a tenant of Knox. I have some of the survey enclosed with a fence. I have about 15 acres of it .fenced up. I fenced that land up in the spring of 1896; that is_, a part of it, not all of it. I say that I am holding it ás a tenant for Mr. Knox, W. H. Knox during his lifetime, and since then for Hiram. I have been holding it that way since some time in 1905, the early part of the year. I had an agreement with Mr. Knox to hold it as his tenant. As to whether or not I held it that way since some time in February, 1905, up to this time, will say some time in the early part of the year we made the agreement. ⅞ * * I have made a crop on it every year since that time. Besides having it fenced, I have a cotton house on it. I have rebuilt that cotton house. I put one on it in 1906 in the fall of 1906, and it got ‘shackily,’ and I built one over on the other side. I used it for cotton and corn and such as that. I say that I have been holding that continuously since February, 1905, until this time for Mr. Knox, as his tenant, by contract with him.” '

On cross-examination be said:

“This 26 acres described in this instrument has been marked off, surveyed. It was surveyed just about the time or just after Mr. Knox was up there. I disrememher just exactly when it was made. It was surveyed just before or just after he was up there when he first came to me to get me to take it as his tenant; that is, the 26 acres that I am to get in this instrument. That was made shortly after Mr. Mantooth and Mr. Knox and Mr. 'Arthur came up there. My cultivated land is on this 26 acres, and all of my fence and improvements are on this 26 acres. When I went there I didn’t go there as Mr. Knox’s tenant. * * * As to whether or not that 26 acres was surveyed off for me, will say it was to be my portion. I was to know where mine was. From that time I reckoned that 26 acres was to be considered my land. I have been claiming it ever since it was surveyed as my land. I haven’t been claiming that' 26 acres as Mr. Knox’s land. It is on a portion of the Knox survey. Q. I am talking about this 26 acres. You haven’t been in possession of any of the balance of that tract, have you? A. I kept a watch over it. I haven’t got any fence around any of the rest of Mr. Knox’s land. The only possession and improvements I have got is on my own land. I cleared most of it in 1905, and ever since then or right immediately after-wards I had it surveyed, and I have been claiming that 26 acres as my land.”

On redirect examination, the witness said:

“I said that I have been claiming this land. I didn’t claim the land until I had stayed on it a sufficient length of time to perfect the title. I agreed to hold possession of the land for Mr. W. H. Knox, and by reason of holding possession, I was to get 26 acres of land. I was not to get 26 acres unless I held possession of the land for Mr. Knox.”

On recross-examination, be further said:

“I cleared this land, and I made a crop on it in 1896. * * * As to whether or not I cleared that land because I had a deed to it (deed from one McKechney) and because I had been in possession when Mr. Knox first came to see me, will say I claimed it because I had it in possession. I never did claim it under that deed. * * * I do not remember the month when Mr. Knox came up there to see me about this. It Iwas some time the first .of .the year. I think they came from court down here. I think they had been down here at court and came up there. I mean Mr. Arthur and Mrs. Mantooth and Mr. Knox. I think it was some time the first of the year 1905. It was not in July. It was in the first of the year. I think they came from court down here. I think the spring court was going on at that time. * * * I just had that surveyed off and Mr. Knox had nothing to do with the surveying of it, he had nothing to do with it at all. * * * When I met him on the road there wasn’t any agreement (with Knox) about how much I was to have. It was to cover my improvements. It was to be surveyed in a square form, that is the way it was surveyed.”

The contention of appellants that Garling-ton for 9 years prior to the execution of the verbal lease between him and Knox, the owner, bad held, used, and cultivated the 26 acres included in said lease, claiming the same in bis own right, is not sustained by the evidence. The evidence does not disclose definitely bow much land constituted Gar-lington’s improvements prior to 1905, or bow much be bad inclosed. It does show expressly that be claimed most of the 26 acres which be was to receive under bis agreement with mnox, subsequent to 1905. It was not until after this agreement was made that be bad a survey of bis 26 acres run out, and thereafter bis claim to this 26 acres was, by virtue of Knox’s agreement and in subordination of Knox’s title, and not adverse to it. The fair deduction from the evidence is that prior to 1905 Garlington was claiming and bad improved a tract less than 15 acres, and after tne agreement was made, be cleared most of the 26 acres, and, in a measure, enlarged his improvements generally.

Although by reason of the defects in the chain of title above mentioned, the appellants were, by construction of law, tenants in common with the grantees in the defective instruments, yet there was no fiduciary re-Iationship arising out of such tenancy. The very instruments under which they, the grantees, were claiming showed a good-faith effort to convey and acquire the legal and equitable title to the entire tract of land, and thus destroy any interest remaining in the land to the appellants or their predecessors in title. Although the 5-year statute of limitation could not be based on the married woman’s deed on account of its defective acknowledgment, and it, therefore, not having the character “of a duly registered deed,” still the deed from Derrough to Knox, being free from defects and properly recorded, meets that particular requisite of the law, and will support a claim under the 5-year statute. So far as the instruments in appel-lees’ chain of title are concerned, they speak, in positive and emphatic terms, a purpose and intention to show no recognition or admission of any interest in appellants or their predecessors in title to any of the land in controversy, but, on the contrary, their terms show an active, open, positive, and hostile assertion of title in the appellee and his predecessors in title to the entire 354 acres.

While it was held in the case of Holland v. Nance, 102 Tex. 177, 114 S. W. 346, and which is relied upon by appellants for a reversal of this case, that the recording of the deed does not constitute possession of land, and is, in fact, not notice of possession, yet the instruments in appellee’s chain of title in the instant case not being void, and in themselves undertaking in good faith to convey the entire tract of land, including the interest of appellants, and the deed from Derrough to Knox having been duly recorded in Sabine county, .constituted notice to the appellants of the character and nature of the adverse claim of appellee to the land. Carr v. Alexander, 149 S. W. 218. In the latter case, it was said by the court:

“Appellants were charged with knowledge of all that the records of the county disclosed; and such being the case, it seems to us-that, having notice of the fact that the Arledges (who were claiming the entire tract), had sold and conveyed to others as much of the land as they had any right to, then when thereafter they remained in possession of the balance of the tract, which in its entirety rightfully belonged to Mrs. Oarr, the latter was charged with notice that such possession of the Arledges was adverse to any right of hers. Furthermore, for more than 10 years before this litigation commenced, the land records of Williamson county disclosed the fact that the Arledges were asserting an adverse claim to the entire 400 acres, because the deed from M. P. Arledge and his wife to the McGinnises, conveying 100 acres off the south end of the 400-acre square, described that tract as the M. J. Arledge 400-acre survey, and contains the following statement and recital: ‘The said 400-acre tract was the tract that my wife, Elizabeth Arledge, fell heir to from her father Mathias Prewitt’s estate.’ Thus it appears that the exclusive claim of the Arledges had become notorious, not only by reason of the facts referred to in the findings of the trial court, but by reason of the fact that their exclusive claim was embodied in a recorded deed, made by the Arledges, conveying a portion of the 400-acre tract, in which deed it was asserted, in substance, that Mrs. Arledge had title to the entire 4Ó0 acres.”

All of the instruments in appellee’s chain of title, as hereinbefore .stated, asserted a denial of any. interest of appellants in and to the land. This case is not based upon the same state of facts as supports the principle announced in the Nance Case. In the latter case, the court simply held that an adversary, who inadvertently put a fence a few varas over the boundary line on to the land of another, and who thereafter, when he discovered his error, obtained a deed from some one who was not connected with the title, could not, by the recording of said deed, and without any further change in the nature of his possession, charge notice of an adverse holding of said land to the boundaries in said deed. This case is certainly expressive of a true and logical principle. No real owner ought to be deprived of his land, under the statute of limitation, unless he has actual notice of the adverse claim thereon, or constructive notice thereof, based upon the open, hostile, and notorious assertion of claim and possession of the one so seeking to acquire it adversely. In the Nance Case the facts and circumstances connected with the adverse holding were simply not sufficient to bring home constructive notice to the real owner of any adverse claim to his land. In the present case, the ancestors of appellants, in good faith, undertook to sell and divest themselves of all of the title to the land in controversy, specifically setting forth in the purported conveyances the land by metes and bounds. These conveyances were fatally defective, and therefore, technically, did. not pass title to the wife’s interest. All of the instruments were executed in 1871. Between that time and the filing of this suit, in September, 1914, no attempt had been made to repudiate what, in good faith, their ancestors did 43 years previously, and not until now do the appellants, grandchildren of the main actors to the original sale, seek to set it aside, and recover their grandmother’s interest, by reason of such defect in the instruments evidencing the conveyance. In 1901, Derrough, the purchaser from appellants’ ancestors, sold the entire tract of land to W. H. Knox, again descriving the land by specific metes and bounds. This instrument met all of the legal requirements of a deed, and was duly recorded in Sabine county on the 8th day of January, 1901. In 1905, the grantee under that deed found Gar-lington on the land, having something less than 15 acres in improvements thereon, and made a verbal agreement with him, whereby he leased him the entire 354½ acres, and Garlington agreed to become Knox’s tenant, for which Knox agreed to give him, the tenant, 26 acres, including his improvements. How much or how little additional improvements were added after this lease agreement is not definitely shown by the evidence, but some acreage was added to-the improvements. At any rate, Garlington remained on tlie land as Knox’s tenant for more than 6 years under this verbal agreement, and' Knox, in the meantime, claimed the land and paid the taxes thereon. During the time Garlington was on the land under the Knox lease, and in addition to having the improvements on the 26 acres, he also testified that he “watched over” the entire tract of 354½ acres. It would have been better, perhaps, to have had him state just what acts he performed,' instead of stating1 his conclusion as to them. However; “watching over” anything is to be construed as preserving, preventing spoliation, encroachments or trespasses, and having the right of and exercising control or dominion over anything.’

Under the facts of this case, we hold that the appellants were charged with notice of Knox’s adverse claim and possession of the land, so as to sustain the 6-year statute of limitation. Holloway v. Purington, 175 S. W. 507; Carr v. Alexander, 149 S. W. 218.

Even though it be conceded that the written lease executed between Garlington and Knox in 1910 is restrictive in its nature, and falls within the rule announced in the case of Houston Oil Co. v. Kimball, 114 S. W. 667, and other subsequent cases following that decision, the full five years had run under the verbal agreement, and therefore limitation was perfected before the written lease was executed. Under the verbal agreément there was no express provision restricting appel-lee’s possession to any particular portion of the land.

We cannot agree with appellants’ contention that the evidence fails to show that Gar-lington ever claimed or exercised dominion over any of the land outside of the 26 acres; nor can we agree with the contention that the evidence shows that he claimed such 26 acres, not as appellee’s land, but as his own. The claim of Garlington to the 26 acres was simply under the tenancy agreement, and in recognition ’ of the Knox title, he mating such claim under the terms of the lease contract which provided that such land should be his for services rendered as Knox’s tenant.

Under the third proposition, appellants contend appellees and appellants being tenants in common to the land in controversy, the possession of W. H. Garlington was insufficient to support appellee’s plea of adverse possession as to his cotenants, appellants, because there is no actual notice shown of the adverse claim, and no conduct or any other acts of notoriety referring to or asserting the adverse claim sufficient to raise a presumption of notice to appellants.

What has heretofore been said disposes of this proposition. The due registration of the Derrough deed to Knox, and the claim of ■title and adverse possession of Knox through his tenant, Garlington, was ipso facto notice to appellants that appellee was asserting claim to the whole tract, and was in adverse possession thereof. Robles v. Robles, 154 S. W. 230; Carr v. Alexander, 149 S. W. 218. Actual notice was not-necessary.

Finding no error in the judgment of the trial court, appellants’ assignments of error, together with the propositions thereunder, are overruled, and judgment of the court below affirmed, It is so ordered.
      iSxoFor other cafes see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ÉxroFoi other oases see same topic and KFY-NUMBEH. in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    KEY v. JONES.
    (No. 29.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 14, 1916.
    Rehearing Denied Jan. 24, 1917.)
    1. Payment <&wkey;59 — Pleading and Peooe.
    In a suit to foreclose a vendor’s lien note, where the plaintiff’s own testimony was not conclusive that the note had not been paid, the defendant was entitled, without having pleaded payment, to show that he had fully paid the note.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. § 143½; Dec. Dig. <&wkey;>59.]
    2. Vendor and Purchases ¡&wkey;257 — Vendor’s ' Lien — Reservation in Note — “Executory Contract.”
    Where a deed contained • covenants of warranty of title and recited the execution of notes for the purchase money and that such notes were to be liens upon the land conveyed, such deed, with the notes, constitute an “executory contract” to sell the land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 654; Dec. Dig. &wkey;>257.
    For other definitions; see Words and Phrases, First and Second Series, Executory Contract.]
    3. Payment <&wkey;73(l) — Evidence — Sufficiency.
    In a suit to foreclose a vendor’s lien note, evidence held to show that the debt had been paid.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 220, 224, 235, 237, 238; Dec. Dig. &wkey;73(l).]
    4. Vendor and Purchaser <&wkey;100 — Execu-tory Contract — Rescission.
    Although notes for the purchase price of land, together with a conveyance, reciting that such notes were to be vendor’s liens upon the land conveyed, constituted an executory contract to sell the land, where it appeared that the debt has been paid and the notes are barred by the statute of limitation, the vendor should not be allowed to rescind the contract and recover the land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent Dig. § 170; Dec. Dig. <&wkey;100.]
    5. Limitation oe Actions <&wkey;6(9) — Vendor’s Lien Notes — Action.
    Acts 33d Leg. (1st Called Sess.) c. 27 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695), provide that the owner of vendor’s lien notes reserved in a deed executed prior to July 4, 1905, and not more than 4 years past due when the act took effect, shall have 12 months to obtain an extension or bring suit to enforce the lien if the notes are valid' obligations when the act takes effect, and that the owner, having a superior title to land retained in any deed of conveyance, shall have 12 months after the act takes effect to bring suit for the land if the claim is not otherwise invalid. Held, that vendor lien notes, executed December 10,1883, were barred by the statutes of 4 and of 10 years' limitation, and, not being valid obligations when chapter 27 took effect, the holder could _ not toll the statute of limitations by filing a suit to foreclose his lien within 12 months.
    [Ed. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. § 25; Dec. Dig. <@=38(0).1
    6. Constitutional Law &wkey;>107 — Vested Rights — Limitation oe Actions — Constitutionality.
    A statute, undertaking to stipulate the time within which a suit to recover land should be barred when the superior title remains in the vendor, is constitutional, and not violative of vested rights.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 246-251; Dec. Dig. <⅞= 107.]
    Error from District Court, Liberty County; J. Llewllyn, Judge.
    Suit by P. R. Key against Henry Jones. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    Stevens & Stevens, of Houston, for plaintiff in error. E. B. Pickett, Jr., of Liberty, for defendant in error.
   BROOKE, J.

This suit was instituted in the district court of Liberty county by P. R. Key against Henry Jones, on December 11, 1913, to foreclose a vendor’s lien note, being in the sum of $163.04. The vendor’s lien note was dated December 10, 1883. On May 20, 1914, defendant filed his answer, pleading the statutes of 4 and 10 years’ limitation against plaintiff’s 'claim. On November IS, 1914, plaintiff filed his first amended original petition, the amendment containing the following allegations with respect to the note and lien, to wit:

“That heretofore, to wit, on or about the 10th day of December, 1883, defendant made, executed, and delivered to plaintiff his certain promissory note for the sum of eighty-three (83) * * * bearing date of the year and date aforesaid, and due in three (3) years after date and payable to the order of plaintiff, and bearing interest at the rate of 10 per cent, per annum from date until paid. Whereby defendant became bound and liable to pay, and promised to pay, plaintiff the sum of money in said note specified, together with all interest due thereon according to the tenor and effect thereof. ’ That said note was given for a part of the purchase money of the following described real estate and premises situated in the county of Liberty and state of Texas, to wit: [Here follows description of land].”

The amended petition then proceeded as follows:

“That said property was heretofore, to wit on the 10th day of December, A. D. 1883, conveyed by plaintiff to defendant by his deed of writing of that date in consideration, among other things, of the note herein described, and that in said deed of conveyance a lien was reserved thereon to secure the payment of said note; a copy of said deed is hereto attached, marked ‘Exhibit A’ and made a part hereof. That said note is due and unpaid, and defendant, though often requested, has failed and refused to pay said note, except the following amounts, and upon the dates stated, to wit: The sum of $61.95 on the 10th day of March, 1891, the sum of $40 on the 28th day of Eebruary, 1S93, the sum of $30 on the 27th day of October, 1900. That there is now a balance due of $163.04 upon said note. The defendant by his answer filed in this cause having pleaded the statute of four and ten years’ limitation to the aforesaid note, the plaintiff, complaining of said defendant, represents to the court that on or about the 1st day of January, 1913, he was lawfully seised and possessed of the land and premises above described, and that on the date above described was assuming and claiming the same in fee simple, and that on the date and year last aforesaid, defendant unlawfully entered upon said premises and ejected plaintiff therefrom, and unlawfully withholds from him possession thereof to his damage in the sum of one hundred and sixty-three ($163.00) dollars. Wherefore plaintiff prays judgment of the court that he have judgment for the title and possession of said above-described land and premises, and that a writ of restitution issue, and for his damage and costs of suit, and for such other and further relief, both special and general, in law and equity, that he may be justly entitled to.”

The original petition prayed for both special and general relief, in law and in equity. On November 18, 1914, defendant filed a supplemental answer in response to plaintiff’s first amended original petition, in which he set up that the suit had not been brought within 12 months from the date on which the act of April 3, 1913 (Acts 33d Leg. c. 123 [Vernon’s Sayles’ Ann. Oiv. St. 1914, arts. 5693-5695]), took effect, and that the same is now barred by limitation as provided by the terms of articles 5694, and 5695, of said act. Defendant further pleaded not guilty, and the statutes of 5 and 10 years’ limitation, and also in said supplemental answer set up a cross-action against the plaintiff to recover the land. The court in its judgment found that plaintiff’s cause of action was barred by the statute of limitation, and accordingly rendered judgment for the defendant.

Plaintiff in error groups his first, second, third, and fourth assignments of error in which complaint is made:

“(a) Because the court erred in holding that the plaintiff’s causé of action was barred by the statutes of 4 and of 10 years’ limitation.
“(b) The evidence having shown that the land in controversy was conveyed by the plaintiff to the defendant on the 10th day of December, 1883, and that, the defendant executed to the plaintiff his promissory note in the sum of $83, bearing interest at the rate of 10 per cent, per annum from date until paid, and that an express lien was retained in said conveyance to secure the payment of said purchase-money note (said note being for the purchase money of said land), and, the evidence having further shown that said note is due, and that at the date of said judgment there was an unpaid balance of principal and interest on said note of $163.04, and it having been shown to the court that this cause was filed, seeking a foreclosure of said vendor’s lien on the 11th day of December, 1913, and the defendant having filed his plea of limitation, the plaintiff, on the 18th day of November, 1914, after said plea of limitations were filed, filed his first amended original petition, wherein he, in the alternative, asked for a rescission of said sale, and prayed for the recovery of said land; hence the court erred in rendering judgment for the defendant.
“(c) The plaintiff under his pleadings was entitled to general relief, and since under the act of the Legislature approved April 3, 1913, by the terms of said amended act (articles 5693, 5694, and 5695, Revised Statutes), neither plaintiff’s right to foreclosure of the vendor’s lien nor his right to recover said land is barred by limitation, the court erred in not either foreclosing said lien or rendering judgment in favor of the plaintiff for the recovery of said land.
“(d) Under Acts 33d Leg. 1st Called Session, p. 39, the plaintiff had until November 19, 1914, to sue and foreclose his lien or to sue to recover the land, and, the amended petition of the plaintiff having been filed November 18, 1914, in which he seeks to recover under his superior title, hence the court erred in not rendering judgment for the plaintiff for the land in controversy.”

The propositions advanced under these assignments are:

“(a) Under articles 5694 and 5695 of the Revised Civil Statutes of the state of Texas, as amended by the Acts of the Legislature of 1913, the holder of a note secured by an express vendor’s lien executed prior to July 14, 1905, can toll the statute of limitation provided for in said articles by filing a suit to foreclose his lien within 12 months after said amended acts took effect.
“(b) Where a purchaser buys land on a credit and executes his promissory notes therefor and receives from the vendor a deed containing covenants of warranty as to title and reciting the execution of the notes for the purchase money, and that such notes are to be vendor’s liens upon the land conveyed, the title to the land is prevented from passing, and such deed, together with said notes, are construed as one instrument evidencing an executory contract to sell the land.
“(c) Under article 5695, Revised Statutes, as amended by the act of 1913, the owner of a vendor’s lien note secured by an express lien in the deed of conveyance, which was executed pri- or to July 14, 1905, could bring suit within one year to foreclose his lien without reference to rescinding the title and recovering the land, since such notes were valid obligations when said act took effect.
“(d) An election of remedies is not made- by the vendor filing suit and seeking a foreclosure of his lion, since there is no election of remedies where the rights to be enforced are entirely consistent, and the vendor can, accordingly in the alternative, ask for a rescission of the sale.”

In the case of Huffman v. Mulkey, 78 Tex. 500, 14 S. W. 1030, 22 Am. St. Rep. 71, the following language is used:

“The right of a vendor, who has conveyed land through a deed on its face reserving a lien for purchase money to rescind, is not an absolute right, even in cases in which the purchase money has become due and remains unpaid, as may be seen by an examination of the many cases decided by this court. The right of the vendor to rescind in such cases does not exist at all until the vendee has failed to pay purchase money in accordance with the contract, and one to whom a vendee has conveyed is entitled to all the rights of his vendor, which cannot be affected by any transaction between the original vendor and his vendee after the latter has parted with his interest in the land. The evidence does not show when the transaction between Evans and Parman occurred, which it is claimed operated as a rescission of the contract between them, and is consistent with the fact that this may have occurred after Parman had conveyed to Evans and Huffman. The evidence further fails to show when the notes executed by Par-man matured, and under this state of facts in this action we think the charge was misleading, in that the jury must have understood from it that Huffman could not recover unless he showed that the purchase money had been paid or that the conveyance to Evans and himself was made with the consent of the former. If he bought without consent of Evans, and before Evans had right to rescind, or had in some lawful manner actually rescinded, no agreement subsequently made between Parman and Evans could defeat any right acquired by him through the deed from Parman to Evans and himself; and, before Evans could hold the land by any superior right as a vendor, it would be incumbent on him to show a right to rescind, which, in such a case, could not be proved unless it was shown that the purchase money was due and unpaid. In Kennedy v. Embry, 72 Tex. 389, 10 S. W. 88, it was held that a vendor of land, who had executed a deed to the purchaser and taken a mortgage to secure the purchase money might sell to another and pass title to the land after all the purchase money became due and remained unpaid. In that case no part of the contract had been performed by the purchaser; he had never been in possession, all the purchase money was past due and unpaid, and the purchaser had abandoned the state. A similar ruling was made in Thompson v. Westbrook, 56 Tex. 265. In these cases the facts existed which entitled the vendors to rescind, but the cases push the application of the rules growing out of the holding that such contracts are execu-tory in character to the utmost verge of propriety or reason; and the writer doubts the correctness of the holding, even in such cases, that rescission can, in any ease in which a deed has passed, be made otherwise than by a writing, or some decree of a proper tribunal, if for no other reason, because it makes title to land to rest largely in parol, when the purpose of the statutes of fraud was to require such right to be evidenced in a different manner. In Dial v. Crain, 10 Tex. 453, a parol rescission of an ex-ecutory contract to convey land was set up, and in disposing of the case it was said: ‘This was a good and valid contract under the statute of frauds, and was proof that the land was sold by Vaughan to Crain. If so, then, Crain being the owner of the land, any contract for rescission would be as much obnoxious to the provisions of the statute of frauds, and would require the same evidence under the statute to set it up as was required for the sale between Vaughan and Crain.’ * * * However this may be, all the cases deny to the vendor the right to rescind so long as the vendee is not in default. In Burgess v. Millican, 50 Tex. 401, quoting from Dunlap v. Wright, 11 Tex. 597 [62 Am. Dec. 506], it was said: ‘When a mortgage for the payment of the purchase money for land is executed simultaneously with the deed by which it is conveyed, the vendor has, until the purchase money is paid or the mortgage foreclosed, the superior right, and if the vendor go into possession after the vendee has made default, he cannot be turned out by process of ejectment or trespass to try title, notwithstanding the claim for the purchase money may be barred by the general law of limitations.- * * * The effect of the principles in these cases is that the vendor’s 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. The sale will be conditional, the ultimate right to the fee depending on the performance or nonperformance of the conditions. If the purchase money be paid, if the mortgage be satisfied, the seizure will be regarded as having been in the vendee ab initio, or from the date of purchase. If not paid the vendor will in the language of Stow v. Tifft, 15 Johns. [N. Y.] 458 [8 Am. Dec. 266], be ‘reseised free of the mortgage.’ Under this the right to rescind does not exist until the vendee is in default, and to prove the fact giving this right rests on the vendor in a contest with a third person.”

In the still earlier case of Milligan v. Ewing, 64 Tex. 260, the court used the following language:

“It is claimed that the court erred in refusing to render judgment for the land. We are of the opinion that the court did not err in this respect. It is ordinarily true that a vendor who has made an executory contract to convey land may rescind the contract if the vendee fails to pay the purchase money. This right, however, does not exist in all cases; for if there be facts which make it inequitable for the vendor to exorcise this right, a court of equity will not enforce it, but will leave the party to his_ action for the purchase money. ⅜ * ⅜ In this case one of the parties is dead, and the mouth of the other is closed, whereby it cannot be known whether, as claimed by the defendant, the payment of the $230 contemplated as cash payment was made. The judge who tried the case was evidently in great doubt upon this subject, and might consistently with the evidence have found that it had been. The appellee has assumed the payment of the debt due to Zimmerman, as_ a part of the consideration for the land, thus giving to a third person the right to call upon and to compel him to pay it — an obligation which, as between the estate represented by appellant and the appellee, it would be inequitable to enforce if the consideration which gave rise to that obligation be withdrawn, while at the same time the legal obligation to Zimmerman continued. The two notes which were executed were negotiable; neither of them was produced on the trial, nor was it shown that they had not been so transferred to a third person as to make him an innocent holder, and to cut off equitable defenses. These notes shoñld have been tendered for cancellation if rescission was desired, or it should have been shown that they were not in the hands of an innocent holder.”

In the case of Moore v. Giesecke, 76 Tex. 549, 13 S. W. 290, the court, in reviewing a number of cases, and especially the case of Tom v. Wollhoefer, 61 Tex. 281, used the following language:

“ ‘The vendor’s remedy by rescission is a harsh and stringent one, especially when a part of the consideration has been paid, and it is sought to forfeit the payment and recover or resell the land. Hence slight circumstances are seized upon to protect the vendee against the forfeiture of the amount paid, or compel the vendor to seek redress by a suit for the balance of purchase money. He must not delay too long in insisting upon the payment of the money as it falls due, or he will he considered as having waived the default. He must not treat the contract as still subsisting, or do any act which may be construed into its affirmance.’ In the case of Hamblen v. Folts, 70 Tex. 134, 7 S. W. 834, it is said: ‘It is true that where the vendee is willing to perform the contract, and the vendor has received a part of the consideration, or has delayed for an unreasonable time to ask for a rescission, so that the vendee would have- the right to conclude that strict performance on his part would not be insisted upon, and under that apprehension has made valuable improvements on the land, or when, for any reason it would be inequitable for the vendor to recover possession of the land, a court of equity will not permit him to do so. And the question at last in every caso must be, is a rescission inequitable under the rules laid down by the courts, or has the vendee forfeited all right to perform the contract and obtain the land?’ In the case of McCarty v. Moorer, 50 Tex. 287, Chief Justice Moore, said: ‘The appellees unquestionably held the superior title to the land sued for, after appellant’s failure to comply with the terms of the contract for its purchase. But it does not follow that they were entitled to dispossess appellant without regard to the equities which appellant was entitled to by reason of his partial performance of the contract and valuable improvements placed on the land. ‘The failure on the part of appellant to comply with the contract warranted appellee’s demanding the land, but it is equally clear that the court may deny the possession of it until they satisfy all the equities growing out of the contract in favor of appellant. * * * We understand every decision on the subject to recognize the right of the vendee to assert his equities whenever the suit of the vendor is for a rescission of the contract. On the other hand, we do not understand that it was intended to decide, in the cases where the vendor brought suit simply to try the title, and for possession, that equities in favor of the vendee of a nature entitling him to relief would not be heard. We think rather, that in these cases it was intended to decide that the facts pleaded by the vendee did not show a case entitling the party to affirmative equitable relief. We can see no good reason why the right of the vendee to eguitdble relief when he is sued for the purchase money or for the land itself should at all depend upon the character or the form of the plaintiff’s suit. Whether or not he is entitled to any equitable relief mil he a proper subject of inquiry in every ease. When the circumstances of the tra/nsaetion show him to deserve it, it should he administered; and when they do not, it should he denied. The rule has been repeatedly and distinctly asserted, and is left by this decision in unimpaired force, that where the vendor has done nothing to waive that right he may, in every case of an executory sale of land where the vendee makes default in paying the purchase money, maintain a suit for the recovery back of the land. We can see no good reason why in every case in which the vendor sues to recover back the land contracted to be sold the original vendee, or any purchaser under him, may not only show, if the facts warrant it, that a recovery or rescission should not be allowed, and if that remedy is maintainable, also the existence of any facts entitling him in equity to have compensation for permanent and valuable improvements and to be compensated for partial payments previously made. We repeat what has already been said when we say that, when the vendee’s suit is predicated upon the mere refusal of the vendee to pay the whole consideration contracted for, the facts that the vendee has paid part of the consideration and made permanent and valuable improvements, coupled with possession of the property, unaided by some other sufficient equity, will not entitle him to recover for such purchase money or improvements. In such cases, when the vendor has neither waived his legal rights, nor committed any default, he cannot be involuntarily taxed with improvements made upon his property without his consent, or be made to pay a price_ for recovering it back. The remedy by rescission is not favored, and, as has been said, slight circumstances, when they may he properly treated as indicative of a. purpose upon the part of the vendor not to insist on that remedy, may he treated as a waiver of the right to rescind, unless its maintenance becomes necessary to enable the vendor to enforce the payment of the consideration for which he contracted to sell the land; and when a suit for the recovery booh of the land has been brought, where any portion of the purchase money has been paid, or where valuable and permanent improvements have been placed upon the land by the vendee or by purchasers under him and the defendant when sued, brings into court and offers to pay the balance of the purchase money with costs of suit, unless there exist strong countervailing equities, the money ought to be received and a recovery of the land denied.” (Italics ours.)

This suit was brought 30 years and 1 day after appellant made and delivered the deed to appellee, and the latter gave the appellant his note in part payment for the land now sued on. The original amount of the note was $S5, and the-interest rate was 10 per cent, from date. On the back of the note was written these indorsements:

“Received on the within note March 10, 1891, the sum of sixty-one & 95/100 ($61.95) dollars. Received on this note, Eeby 28th, 1893, forty (40) dollars. Received on the within note October 27, 1900, the sum of thirty (30) dollars.”

And also these indorsements:

“I acknowledge the within note to be a just and valid claim against me and hereby promise, to pay the same according to its legal tenor and effect, this September 15th, 1896.
his
“Henry X Jones, mark
“Witness:
“W. F. Hardin.”
“I acknowledge the within note to be a just and valid claim against me and hereby promise to pay the same according to its legal tenor and effect this 10th day of December, A. D. 1890.
“Henry X Jones, mark
“Witness:
“W. E. Hardin.”
“Notes of J. Jones belonging to P. R. Key, left with W. E. Hardin for collection.”

The note is dated December 10, 1883, and payable to P. R. Key or order 3 years after date. Appellee also executed three other notes at the same time that he gave this one to P. R. Key, as consideration for the land purchased, said three notes being as follows: One for $100, due January 1, 1884; one for $85, due 1 year after date; and one for $83 due 2 years after date.

Appellant is the payee named in said notes, and he testified that he is the owner and holder of the note sued upon. He testified also:

“I don’t know the exact amounts paid on this note, as payments have always been made to my agent, and X do not know of my own knowledge whether all of the payments have been credited on the note or not — my agent has had charge of the note — but I believe it to be correct. I have not allowed any credits personally; my agents have done that. I believe all the credits have been allowed by my agent. I don’t know what has become of the three notes mentioned, that is, one for $100, due January 1, 1884, one for 84, due 1 year after date, and one for $83, due years after date; don’t know what become of them. I suppose Henry had paid the three notes mentioned, but X have not canceled and delivered them to him. I don’t know whether the notes were ever canceled or not; I did not cancel them, nor did I authorize any one to do it for me. When W. P. Hardin collected from the defendant the money paid on the note sued on herein, he was acting as my agent; he was never the owner of the note. It is true that my brother, E. H. Key, was also acting as my agent, and if he collected anything on said note, he was doing so as my agent. I also authorized L. G. Guertin to act as my agent, and to act as my agent in receiving such payments. No one outside of the ones of W. E. Hardin, F. II. Key, and L. G. Guertin had any authority to act as my agent in receiving payments on said note.”

The evidence shows that W. F. Hardin is dead, but appellant offered no explanation for not calling as witnesses the said E. I-I. Key and L. G. Guertin, who were his agents that collected payments upon this note, and appellant says that no one except the said three agents had any. authority to act as his agent in receiving payments on said note. M. K. Guertin, a witness for appellant, testified that he asked appellee about this note, but never took the note to him, and that ap-pellee told him—

“at that time that he owed the note, and if I could wait until he gathered his crop he would pay it. He knew the note was concerning the land he was living on, and was a note he executed for a part of the purchase money. I told him that I had the note, and he said he owed it, and if I would wait until fall, he would pay it. I did that for the plaintiff, Mr. Key; he is my uncle, and lives in West Texas.”

The testimony shows that appellee has been paying taxes on the land ever since he bought it from appellant in 1883, and since that time has used and occupied it as the home of himself and family, cultivating and keeping about 20 acres of the same inclosed, and appellee would have proven, except for objection by appellant, the following facts:

“That Mr. W. F. Hardin had in his possession the note sued upon, and defendant paid said Hardin the said note in full a good many years ago; that he paid off the note in full to said Hardin about the time Mr. Hardin stopped attending to any business on account of the condition of his mind ; that when Mr. Merrill Guer-tin asked him (defendant) about the note, he did tell Mr. Guertin he would try to pay the balance Mr. Guertin claimed was due upon it, when he (defendant) gathered his crop, and told Mr. Guertin this because Mr. Guertin was a white man, and he, being a negro, thought it would be best to pay something to Mr. Guertin, and in that way avoid having any disagreement with Mr. Guertin about it.”

It is admitted that W. E. Hardin died in 1907, and that for several years prior to his death, his health, bodily and mentally, was in a serious condition, and that he was totally incapacitated from giving attention to any business affairs or transactions.

Appellant’s own testimony is far from conclusive that the note has not been paid. It is true that he says that he does not know the exact amount paid on the note, and does not know whether all the payments made to his agents have been allowed as credits on the note. He says that he believes the correct credits are shown. The testimony shows that personally he had nothing to do with the collection. Three credits are indorsed on the note, aggregating $131.95.

We believe in this state of the ease, without having pleaded payment, that the ap-pellee was entitled to his own testimony in the case, showing that he had fully paid this note.’ The deed which was executed to ap-pellee on December 10, 1883, contains this recital:

“Now, therefore, I, the said P. R. Key, for and in consideration of the above promissory notes, which aggregate in principal the sum of three hundred and fifty dollars, and which are to be vendor liens on the land hereinafter described, have granted. ⅜ ⅜ * ”

We. are of opinion that the contract was executory, following the case of Buckley v. Runge, 136 S. W. 533, as held by Judge Reese. But while we hold that the contract was executory, it does not follow that it would be equitable to deprive appellee of Ms land.

As said in tbe case of Moore v. Brown, 46 Tex. Civ. App. 523, 103 S. W. 243, tbe ap-pellee purchased this property from appellant on the 14th of February, 1896, for $560,- áll on credit, to be paid in three annual payments of $186.66% each, as evidenced by three notes, due, respectively, on the 1st days of November, 1896, 1897, and 1898. This suit was filed on the 8th of January, 1904, the facts showing that the following payments were made upon the notes: October 25, 1897, $49.50; October, 1898, $48.68; November, 1899, $33; November 17, 1900, $58.81; August, 1901, $254.71.

“The appellee contended that he had fully paid off the notes. The appellee is an old negro, uneducated, and relied upon appellant to keep an account of the payments. The court held that the appellant was not entitled to rescind the sale, and held that the sequestration was •wrongfully sued out. The court gave judgment in favor of appellant for the balance due upon the notes, with interest, and 10 per cent, on the amount as attorney’s fees. He found $375 rents in favor of appellee for the time appellant had been in possession of the land by virtue of the sequestration, and $25 for timber cut and removed by appellant from the land while he has been in possession. The court found that there was due appellant, after deducting the rents and values of timber, the sum of $456.94, for which he rendered judgment in favor of appellant foreclosing his vendor’s lien.”

In further passing on tMs ease on appeal the court said:

“Did the trial court err in refusing to rescind the contract and give judgment for plaintiff for the land? The contract was executory. Upon default by the vendee in an executory contract to convey land the vendor has the right to rescind the sale and to the immediate possession of the land. Where part of the consideration has been paid, the right to rescind may be defeated by showing that there has been too long a delay in insisting on the payment of the purchase money as it falls due and in treating the contract as still existing. * * * The facts show in this case that the appellee Brown continued paying on the notes up to August, 1901, at which time he paid $254.71; that in Ms opinion this paid the notes in full; that he relied upon appellant to keep an account of the payments and the time of payment. The parties kept figuring on the balance due upon the notes, in the language of the witness, up to the time of filing this suit. Appellee arranged with Mr. Connor to pay the balance due on the notes, and when appellee made this fact known to the appellant he stated: T don’t want the money. If I had it I would spend it.’ These facts show that the appellant treated the contract as subsisting up to the institution of this suit, 7 years from the time of the maturity of the first note given in payment of the land. During that time not a suggestion was made by appellant in reference to a rescission. The ap-pellee, while he had possession of the land, made permanent improvements thereon equal in value to the rents. By reason of the improvements made by the appellee upon the land it is worth from $10 to $12 per acre. The trial court held that appellant was not entitled to a rescission. The authorities sustain this holding. Burkitt v. McDonald, 26 Tex. Civ. App. 426, 64 S. W. 694; Moore v. Giesecke, 76 Tex. 543, 13 S. W. 290; Tom and Wife v. Wollhoefer, 61 Tex. 281.”

The note sued on in the instant case was only $83, and credits are admitted to the extent of $141.95, and it seems to have been admitted that the three notes first due were paid in full, although the appellant had not canceled either of them, or delivered them to appellee, and the note was expressly extended three times, each time some years after ap-pellee had defaulted, appellant accepted payments, and then from the date of the last credit shown on the note, appellant still waited for more than 13 years before filing his suit, in the meantime permitting appellee to make use of and improve the land as his home, and to otherwise exercise acts of ownership over it, without the slightest opposition from appellant, and without any insistence by appellant that appellee pay him the balance now alleged to be due.

We think the circumstances in this case are heavy that the debt has been paid, and that the notes being barred by limitation, the right to rescind the contract should not be permitted, and appellant be allowed to recover the land.

While the testimony was not admitted as to the payment of the note, though in our opinion it was admissible, still the circumstances surrounding this transaction, and the fact that the testimony is far from conclusive that there is any balance due appellant, would go far to explain the reason that such a long time was permitted to elapse before insistence on the payment.

We believe that the appellee is correct in his conclusion that when the Legislature in 1913 “passed the act which provides a method for extending notes secured by vendor’s lien and deeds of trust, and also fixed a limitation period for the enforcement of such liens, it gave clear recognition to the practice and rules established by the authorities.” By the terms of chapter 27, Acts of First Called Session of Thirty-Third Legislature, the owner of vendor’s lien notes reserved in a deed executed prior to July 14,1905, and which are more than 4 years past due when the act took effect, shall have 12 months after the act takes effect to obtain an extension of the notes, “or bring suit to enforce the lien securing them,, if same a/re valid obligations when this act takes effect.” (Italics ours.) And, further the act provides that the owners of vendor’s lien notes reserved in deeds executed subsequent to July 14, 1905, shall have 4 years after the act takes effect to obtain an extension of the notes, “or bring suit to enforce the lien securing them, if same are valid obligations and not already barred by the four years’ statutes of limitations when this act takes effect.” The act further provides that the owner of the superior title “to land retained in any deed of conveyance * * * shall have 12 months after this act takes effect within which to bring suit for the land, if their claim to the land is not otherwise invalid.” In the light of this record we are of opinion that there is no merit in the assignment.

The assignments are overruled.

By the fifth assignment of error, appellant says that the present statutes of Texas, which undertake to stipulate a time within which suit to recover land should be brought when the superior title remains in the vendor, are unconstitutional and violative of vested rights; hence the court erred in rendering judgment for defendant. It would serve no useful purpose for this court to go into an extended discussion as to the constitutionality of this law, and without going into details as to the reasons, pro or con, why it may or may not be constitutional, we hold that the said sections of said act are constitutional, and overrule the assignment.

We have carefully gone over and considered the entire record. As said by an eminent judge, in passing upon a case in this state very similar to the one in question, we believe that the judgment of the court below is manifestly correct, and that it meets the equities of the case.

Therefore, the judgment of the lower court is, in all things, affirmed.
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text:
    HUGHES et al. v. HUGHES et al.
    (No. 95.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 20, 1916.
    On Motion for Rehearing, Dec. 21, 1916.)
    1. Appeal and Error <&wkey;'1001(l) — Review— Findings.
    A verdict based on sufficient evidence is conclusive on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3928-3933; Dec. Dig. <&wkey;> 1001(1).]
    2. Fraudulent Conveyances &wkey;>299(l) — Evidence — Sotficiency.
    In trespass to try title, evidence held to support a finding that a prior conveyance of land was made for the purpose of defrauding, hindering, and delaying creditors.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 876; Dec. Dig. <&wkey;> 299(1).]
    3. Fraudulent Conveyances &wkey;>174(l) — Title to Grantee.
    Whore land has been conveyed in fraud of creditors, the title of the grantor passes to the fraudulent grantee, subject only to the right of the defrauded creditors to have the conveyance set aside; as the court is not supposed to grapple with moral propositions.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 530, 542; Dec. Dig. &wkey;174(l).]
    Appeal from District Court, Newton County ; A. E. Davis, Judge.
    Action by Isabella Hughes and another against T. M. Hughes and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    V. A. Collins, of Beaumont, for appellants. Wightman & Hancock, of Newton, for appel-lees.
   BROOKE, J.

Isabella Hughes, joined by her husband, F. P. Hughes, acting, as she claimed, as the administratrix of the estate of J. R. West, deceased, and in her individual capacity, brought this suit against T. M. Hughes to recover on three promissory notes executed by said T. M. Hughes on July 4, 1910, and payable to the order of J. R. West 6, 12, and 18 months after date.

The notes were vendor’s lien notes aggregating the sum of $9,330, reserving a lien on a large amount of land conveyed to T. M. Hughes by J. R. West on July 4, 1910.

J. R. West died on the 11th day of June, 1911, before any part of said notes had been paid, leaving surviving him his wife, Isabella West, now Isabella Hughes, and three children, Emmett West, Riley West, and Sam West, all minors, now residing with their mother, Mrs. Isabella Hughes. The deed from J. R. West to T. M. Hughes of date July 4, 1910, recited a cash consideration paid by said Hughes to the said West of $1,000, and the three notes above described and sued upon in this suit. After the death of J. R. West, T. M. Hughes sold a portion of the land conveyed to him by J. R. West to G. A. Baker, and a portion to E. O. Terry, or more properly, as shown by the evidence, it was sold by F. I*. Hughes, who had previously married Mrs. West, but T. M. Hughes executed the deeds, and the money for same was paid over to F. P. Hughes. On the 29th day of October, 1912, T. M. Hughes executed a deed to S. A. Stark, conveying to said Stark the residue of the land described in the deed from said J. R. West to him. On October 29, 1912, said S. A. Stark executed a deed passing the same land conveyed to him by T. M. Hughes on to F. P. Hughes.

The other defendants herein claim portions of the land by deed from F. P. Hughes subsequent to October 29, 1912. All of the defendants answered save and except T. M. Hughes. The minor children of Isabella Hughes intervened in the suit, and the court, having allowed the intervention, appointed Thos. H. Casey, an attorney at law, guardian for the said minors. The plaintiffs and interveners made common cause against the defendants. The principal defense plead was that the transaction between J. R. West and T. M. Hughes ivas a fraudulent transaction made for the purpose of putting the property of said West out of reach of his creditors, that the said West was on the bond of the county depositary, which had failed, being largely indebted to Newton county, and that said West was trying to put his property beyond the reach of Newton county, and said notes were fraudulent, a subterfuge, and never intended by tbe parties to same to be paid. Plaintiffs replied to tbe answer by supplemental petition and trial amendment, in wbicb tbey plead trespass to try title to tbe land against wbicb said notes were a lien, and prayed for tbe recovery of tbe land, if there was any reason wby said notes should not be paid. It developed that defendants were claiming under a release from Mrs. Isabella Hughes, and also under deed from Isabella Hughes and her husband, E. P. Hughes. By further trial amendment appellants set up tbe invalidity of such release and deeds, that Mrs. Hughes, being a married woman, never acknowledged said release and deeds as required by law, and that at the date of tbe deeds from E. P. Hughes under which appel-lees claimed said E. P. Hughes was a minor, and that be had just reached his majority, and elected to repudiate and disaffirm the deeds, and that be had no part of the consideration be received from said deeds, and was therefore una.ble to restore same.

The case was submitted on special issues, and tbe jury found that the deed from J. R. West to T. M. Hughes, of date July 4, 1910, was made for tbe purpose of defrauding, hindering, and delaying creditors of said J. R. West, and that said notes were not to be paid by Hughes, and that such was tbe understanding between West and Hughes.

It will, perhaps, at tbe outset, be well to set out the charge of the court in full, viz.:

“In this case the court submits to you certain questions to be answered by you, and which questions when so answered by you will form the basis on which the court will render judgment herein. The burden of proof rests upon the plaintiffs to show by a preponderance of the testimony the material allegations in their petition; and the burden of- proof rests upon the defendants to show by a preponderance of the testimony that the deed made by J. R. West to T. M. Hughes on July 4, 1910, was a fraudulent conveyance.
“Question No. 1: Do you believe from the evidence in this case that the conveyance made and executed by J. R. West conveying the property in controversy to T. M. Hughes, dated July 4, 1910, was made, executed, and delivered for the purpose of defrauding, hindering, and delaying any creditor of the said J. R. West? You will answer this question Wes’ or ‘No’ as you may determine the fact to be. To which question the jury answered ‘Yes.’
“Question No. 2: Do you believe from the evidence in this case that J. R. West, at the time of the execution and delivery of said deed, intended to place his property beyond the reach of his creditors? You will answer this question ‘Yes’ or ‘No’ as you may determine the fact to be. To which question the jury answered ‘Yes.’
“Question No. 3: Do you believe from the evidence in this case that at the time of the execution of said deed, on July 4, 1910, that T. M. Hughes knew when he received said deed that J. R. -West was conveying said land recited in said deed for the purpose of placing his property beyond the reach of his creditors? You will answer this question ‘Yes’ or ‘No’ as you may determine the fact to be. To which question the jury answered ‘Yes.’
“Question No. 4: Do you believe from the evidence in this case that J. R. West and T. M. Hughes intended, at the time of the execution of said notes, that T. M. Hughes was merely to hold the land conveyed to him for the purpose of assisting the said J. R. West in placing the property of J. R. West beyond the reach of his creditors, and that the notes given by T. M. 'Hughes to J. R. West were never to be paid? You will answer this question ‘Yes’ or ‘No’ as you may determine the fact to be. To which question the jury answered ‘Yes.’ ”

Also tbe following instruction was given:

“Question No. 5: Did G. A. Baker know at the date of the deed from T. M. Hughes to him in evidence in this case and before he paid the money which was paid to him for said deed, that T. M. Hughes was conveying property to apply the proceeds thereof on the notes held by the estate of J. R. West, deceased. Answer ‘Yes’ or ‘No’ as you find the fact to be. To which question the jury answered ‘No.’
“Question No. 6: Did E. O. Terry know at the time of the deed from T. M. Hughes to him in evidence in this case and before he paid the money for said deed that T. M. Hughes was conveying property to apply the proceeds thereof on the notes held by the estate of J. R. West, deceased? Answer ‘Yes’ or ‘No’ as you find the fact to be. To which question the jury answered ‘No.’
“Question No. 7: In the conveyance from T. M. Hughes to S. A. Stark, and from said Stark to F. P. Hughes, was it understood and intended by each of the parties thereto to put the title of the land in controversy in this suit into E. P. Hughes in trust for the estate of J. R. West, deceased? Answer ‘Yes’ or ‘No’ as you find the fact to be. To which question the jury answered ‘Yes.’ ”

Tbe court also instructed tbe jury that, in addition to tbe verdict herein, as requested by tbe court on special issues, they should return a verdict for the defendant S. A. Stark as to the cross-action of the defendants against said Stark on the alleged warranty, and stated the form of the verdict, which verdict on said issue was duly signed by the foreman of tbe jury.

By the first assignment of error the action of the court is challenged in refusing to give special charge No. 1 of appellants, which was „ an instruction to find for the plaintiffs foreclosing tbe lien, upon the ground that the testimony showed that J. R. West intended to convey to T. M. Hughes the title to the land by deed of July 4, 1910, and that T. M. Hughes executed tbe notes in good faith, fully intending to pay the same.

We have examined the record, and, the jury having passed upon the identical question, and there being evidence to support their verdict, the first assignment is in all things overruled.

In tbe second assignment complaint is made of the failure of the court to instruct the jury to find for the plaintiff for the amount of the notes and foreclosing the lien on the following grunds:

“Where one party intends to sell a piece of land and another party intends to buy, both parties acting in good faith with each other, intending the transaction to stand, only creditors of the seller or sellers, or subsequent purchasers for value without notice, can be heard to say that the transaction was other than was intended by the contracting parties, and such transaction is not tainted with such fraud as would keep a court of equity from enforcing it,” etc.

The jury found, against the contention of appellants, found that the transaction between West and Hughes was not in good faith, and we cannot say that there is not evidence to support their finding. Therefore the assignment is overruled.

By the third assignment of error complaint is made that, while the burden of showing by a preponderance of the evidence the transaction between J. R. West and T. M. Hughes was fraudulent, the appellee failed to show by a preponderance of the evidence that said transaction was fraudulent.

As stated above, this matter was submitted to the jury, and they have found against the contention of appellants, and we cannot say but that there is evidence on which to base their verdict. Therefore this assignment is overruled.

Appenants concede in their brief that, if the eviuence raised this issue, that this finding would probably preclude a recovery on the notes. The evidence is not, perhaps, as cogent to our minds as it might have been, but there is evidence in this record showing and strongly tending to show, taking into consideration all the facts surrounding the transaction, that it was a fraudulent transaction, and that it was intended to defraud the creditors of said West. T. T. Howard testified:

“He [meaning West] told me that he had sold the property. As to whether or not he told me that he got the cash, will say I said: ‘Did you get the money for it? If you did you are lucky.’ And he said T got some, I got the balance in vendor’s lien notes, and I can put them where they can’t get them.’ ”

There was evidence that we deem sufficient to support this finding, and, as above said, this assignment is overruled.

Complaint is made by the fourth assignment that the undisputed evidence in the case shows that T. M. Hughes conveyed the land described in the deed from J. R. West to him, to S. A. Stark, to be conveyed to F. P. Hughes in trust for the estate of J. R. West, deceased, and that said Stark so conveyed it to the F. P. Hughes, in trust for said estate, and that defendants and each of them bought from F. P. Hughes with the full knowledge that F. P. Hughes was holding it in trust for the said estate, and having full knowledge of the beneficial ownership of said property. The court should have charged the jury to find for the plaintiffs for the land sued for.

The verdict of the jury was against the contention of appellants, and we cannot say that the testimony is not sufficient to support the same. We have carefully considered this assignment in the light of the record, and, finding no merit in the same, it is overruled.

It is claimed by the fifth assignment of error that the court erred in submitting to the jury question No. 4 in its charge, because, it is contended, if the transaction between J. R. West and T. M. Hughes was fraudulent and for the purpose of hindering or delaying creditors in the collection of debts, only creditors or subsequent purchasers for value without notice could call it in question, and, the defendants not being in either class, the issue was improperly submitted.

The jury has decided that the deed from West to T. M. Hughes was a sham, and not a sale, and therefore, as stated by appellant in his brief, the court will leave the parties where they put themselves; will neither assist West in collecting the notes nor in recovering the land hack. When property has been conveyed in defraud of creditors, all the title of the grantor passes to his fraudulent grantee, subject only to the right of the defrauded creditors to have the conveyance set aside, so far as the deed is concerned, and the property made liable for its payment. As to subsequent creditors, the title of the grantee is good, and the fraudulent grantor has no right in it whatever. I-Ie has no title which can descend to his heirs, or vest in his executor or administrator for the payment of his debts, as none but prior creditors have any claim against the property, and the estate has no title to it. These creditors are the only parties who can sue to subject it to their debts. Willis & Bro. v. Smith, 65 Tex. 658.

There is no merit in this assignment, and it is therefore overruled.

The sixth assignment is as follows:

“The undisputed evidence in this case showing that the only title the defendants had was from and under plaintiffs Isabella Hughes and F. P. Hughes, and at the date of the deeds from said plaintiffs F. P. Hughes was a minor, and that Isabella Plughes was a married woman, and that immediately after reaching his majority F. P. Hughes disaffirmed his deeds to defendants, and further showing that the said Isabella Hughes was not privily examined by the officer in taking her acknowledgment to any of said deeds, but that she acknowledged same over the phone, the court erred to the prejudice of plaintiffs and interveners in refusing and overruling the motion of plaintiffs and interveners for judgment on the verdict for the land sued for in the action in trespass to try title, as more fully appears from their bill of exception No. 6 filed in this cause.”

It appears that the deeds upon their face purport to have been acknowledged as requested by law, both the single acknowledgment of the husband and the separate acknowledgment of the married woman, and it is not shown that any of the appellees to whom the deeds were made had any knowledge or anything to put them upon notice that the acknowledgments were not legal and, regular in all ways; that there was any defect, and it being undisputed that F. P. Hughes was the husband of Isabella Hughes, it is necessary that he should join in the acknowledgment.

Isabella Hughes, for herself as adminis-tratrix of the estate of J. R. West, deceased, pleaded the minority of F. P. Hughes as to said conveyances, and that he was unable to restore the purchase price of the property. F. P. Hughes himself did not plead his minority, nor has he asked the return of the property. The record is silent as to any evidence whether F. P. Hughes was able to return the purchase price received by him for the tracts conveyed by him. The evidence shows that certain of the property was purchased by defendant from T. M. Hughes; that the property known as the “restaurant property” was bought under execution against F. P. Hughes, and nothing is shown or indicated that minority was pleaded in the case in which the judgment was rendered out of which the execution issued. The deeds executed by Mrs. Isabella Hughes were introduced in evidence without objection from appellants, and, as above stated, contained the certificate of the notary, John B. Forse, that she did appear before him. This assignment is overruled.

The seventh assignment is as follows: ,

“Even though the transaction between J. R. West and T. M. Hughes were so tainted with fraud as to make said notes noncollectible and to put an indefeasable title to said land in T. M. Hughes, yet, if he, the said T. M. Hughes, acknowledged the right and title to said land to be in the estate of J. R. West and acknowledged himself holding for said estate, any purchasers from T. M. Hughes with knowledge of his trusteeship and with knowledge of the beneficial ownership of said land acquired no title to said land, and the deed from T. M. Hughes to E. O. Terry of date August 8, 1912, and from T. M. Hughes to G. A. Baker, of date September 12, 1912, passed no title to the said Terry and the said Baker.”

The direct proposition was put before the jury, and they were asked in so many words whether E. O. Terry and G. A. Baker had any knowledge of the trusteeship or any knowledge of the beneficial ownership of said land in T. M. Hughes or not. The jury has passed upon this question, and we see no reason to disturb their verdict on this issue. The assignment is therefore overruled.

The eighth assignment of error is as follows:

“If by reason of the fraud in the transaction between J. R. West and T. M. Hughes, of date July 4, 1919, an indefeasible title to said land was in T. M. Hughes, but he exercised the option to treat himself as the trustee of J. R. West, or after his death, of his estate, purchasers from or under him with knowledge of such fact acquired no title by such purchase, and, the undisputed evidence showing that the said T. M. Hughes acknowledged the title to said land to be in the estate of J. B. West after he failed to pay off the said notes, the court erred to the prejudice of plaintiffs and interveners in not rendering judgment for plaintiffs and interven-ers on their action in trespass to try title.”

We are not Supposed to grapple with moral propositions in this court, so far as what is or is not the moral duty of any man. The jury has said this was a fraudulent transaction. This court will not lend its assistance to and interfere in the matter, but will leave the parties where it found them. We believe that the real issues of the ease were submitted to the jury, and that they were, in the light of surrounding circumstances, considered by the jury, and the jury verdict was warranted.

We believe that the appellants have had a fair and impartial trial, and we are not. disposed to disturb this verdict. So believing, the remaining assignment is overruled, and the judgment of the lower court is in all things affirmed.

It is so ordered.

On Motion for Rehearing.

It is strenuously urged that our finding under the “fourth assignment of error” that the jury had determined that' the purchasers of the land had no knowledge of the alleged fact that F. P. Hughes was holding only as trustee for the estate of J. B. West, deceased, was error. This criticism of the action of the court is just, and we were in error in concluding that the jury so found.

The facts show that the purchasers from F. P. Hughes had notice that the said F. P. Hughes did not pay any consideration for the transfer from T. M. Hughes. However, we are of the opinion that this does not alter the conclusion arrived at in the disposition of this cause.

We have again gone over carefully the record, and believe that the disposition of said cause is correct; therefore the motion for rehearing is in all things overruled.

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