Carleton v. Lombardi , 81 Tex. 355 ( 1891 )

This was an action of trespass to try title, brought by the appellee. The defendants pleaded not guilty and the statute of limitations of five years.

F.W. Chandler was the common source of title, and the plaintiff's evidence was sufficient to show such a title under him as required a judgment in his favor unless it was defeated by evidence of a superior right in the defendants. The case of the defendants depended upon their showing either that the defendant Carleton was a purchaser for value and without notice or that he was entitled to the benefit of the five years statute of limitations.

F.W. Chandler conveyed the land to Samuel H. Mills by his deed dated the 15th day of March, 1869, containing a clause of general warranty. This deed, through which the plaintiff claims, was not recorded until the 9th day of February, 1878. On the 27th day of December, 1876, for the express consideration of $640, the said F.W. Chandler made to the defendant Carleton a quitclaim deed conveying to him, without warranty, all of his "right, title, interest, and claim in and to" said tract of land. The evidence sufficiently established that Carleton purchased without notice of the first deed, and that he paid for the land a valuable consideration.

In the case of Harrison v. Boring, 44 Tex. 262, it was said by this court that "not only the terms of the deed but the adequacy of the price given, and other circumstances attending the transaction, may serve to show, when brought in evidence, whether the purchaser bought the land or bought merely the title." Giving to Carleton the benefit of this rule, we can find nothing in the evidence to aid the sale to him or to show that it was other than what the terms of the deed indicate — a sale of the chance of Chandler's title.

Carleton testified that he paid the consideration for the land in controversy with other land, but that he did not know with what lands he made the payment. As he stated neither the quality, quantity, nor the value of the land conveyed by him in exchange, he failed to aid in giving character to the conveyance to him by showing that he paid an adequate consideration.

The record fails to develop such a state of facts as entitle Carleton to protection as a purchaser for value without notice. His right to hold the land under his plea of the statute of limitations of five years depends upon the question whether his deed was properly recorded.

The original deed is before us as part of the record. It is signed with the name of the grantor, F.W. Chandler. The certificate of the notary public upon which a record of it was made states that it was acknowledged by T.W. Chandler. It is not unlikely that the officer who wrote the certificate made the mistake of taking the F in the signature of the grantor for a T, but there can be no mistake about the initial written by him in his certificate being T, and not F.

The officer certified that T.W. Chandler was known to him and that it was he who made the acknowledgment. The certificate that he knew the party must be held to include that he knew his name and that he gave it correctly in the certificate. Presumptions call not be indulged contrary to the facts stated in the certificate. An acknowledgment of a deed by a person named T.W. Chandler is not proof upon which one executed by F.W. Chandler may be lawfully recorded. It appears that the clerk who made the record inserted in the certificate, as recorded, the letter F instead of the letter T. He made the change without authority, as the statute required him to make the record by entering the certificate "word for word and letter for letter." Rev. Stats., art. 4298.

As it appears that the deed was neither acknowledged nor recorded properly, the defense of limitation failed.

In view of our conclusions upon the issues mentioned, other questions presented by the assignments of error become unimportant.

The judgment is affirmed.

Affirmed.

Delivered June 12, 1891.