McCoy v. Cunningham , 27 Tex. Civ. App. 476 ( 1901 )

This was an action of trespass to try title, brought by appellant as plaintiff below, against J. W. Cunningham and his children, as adverse claimants of the land in suit, and against the other defendants, L. Howard Lee and the Land Mortgage Bank of Texas, Limited, as warrantors in plaintiff's chain of title, with prayer over against his warrantors in case the adverse claimants recovered any part of the land. L. Howard Lee was not served with process, and as to him the suit was dismissed. There were three minor defendants, — John, Burrill, and Grace Cunningham, — for whom W. C. Prewitt was appointed guardian ad litem. The case was tried before the court without a jury. Judgment by default was rendered for plaintiff against the adult Cunninghams. For the three minors, John, Burrill, and Grace Cunningham, the court gave judgment for an undivided 1-70 each, making 3-70 of the 160 acres in controversy, and adjudged that the Land Mortgage Bank of Texas, Limited, was not liable as a warrantor of title. Commissioners were appointed to partition the land. Plaintiff excepted, and appealed, assigned errors, and now presents the case for revision.

In the first and second assignments of error appellant questions the court's action in awarding any part of the land in controversy to the minor children named. The facts relating to the question thus presented are as follows: The 160 acres of land involved in the suit was State school land, and as such was purchased, as appellant seems to concede, from the State in 1879 by one B. W. Gunn, who was the head of a family consisting of himself, a wife, Susan Gunn, and children, some of whom were of age and married at the time. B. W. Gunn and family continued to occupy said land as a homestead until in 1888, when Susan Gunn died intestate, leaving as one of her heirs Mrs. Sarah Cunningham, nee Sarah Gunn, wife of J. W. Cunningham herein sued. No administration was had upon the estate of Susan Gunn, and in July, 1889, Mrs. Sarah Cunningham also died, leaving as her heirs the Cunninghams sued herein, including the minors in whose behalf judgment was rendered. January 14, 1890, all of the surviving children of B. W. and Susan Gunn, save Sarah Cunningham, united in a regular conveyance to their father B. W. Gunn of "all their right, title, interest, and estate" in said 160 acres of school land, the deed reciting that: "Said B. W. Gunn survey being a part of the community estate of said B. W. and Susan Gunn, deceased, and our interest therein being our inheritance, as children of said B. W. Gunn and Susan Gunn, deceased, of our mother's (Susan Gunn's) interest in said community estate; and this instrument is intended to release to said B. W. Gunn all our claim or right to said 160 acres of land, or any part of said estate, real and personal, so left by our mother, Susan Gunn (deceased)," etc. This deed was duly recorded July 26, 1890.

On April 14, 1891, B. W. Gunn, joined by his second wife, S.E. Gunn, for a valuable consideration, made regular conveyance of said land to Thomas Halliman, who soon thereafter went into possession. On June 15, 1891, the land was patented by the State to Thomas Halliman, as assignee of B. W. Gunn, as also seems to be conceded by appellant, under whom, through mesne conveyances, appellant acquired title April 1, 1896. Appellant's immediate vendor was L. Howard Lee, whom appellant found in possession, and to whom appellant paid $3220 as the consideration for his purchase of the land, that being the fair value thereof. At the time of appellant's purchase he believed he was getting full title, and he was without notice of any right in appellees to any part of said land except such, if any, as is to be imputed to him by reason of the record of said deed to B. W. Gunn from his children, the recitals of which are hereinbefore given.

The record fails to disclose the ground of the trial court's conclusion, but inasmuch, as we conceive, the judgment against appellant can be maintained upon no other ground, we infer that the conclusion of the trial court was that the record of said deed to W. B. Gunn and the recitals therein affected appellant with notice, or at least put him upon inquiry as to the community right of Susan Gunn, deceased, and of the right inherited from her by Sarah Cunningham, the mother of the appellees. Appellant controverts such conclusion.

The cases of Edwards v. Brown, 68 Tex. 329; Patty v. Middleton, 82 Tex. 586, and Hensley v. Lewis,82 Tex. 595, settle the doctrine that a purchaser from the surviving husband of land acquired in his name during the marriage, upon a valuable consideration, and without notice of the fact that his vendor had a former wife, takes good title against heirs of such wife, but these cases fail to reach the question of constructive notice now before us. The question presented has not been free from difficulty, and we have been unable to find anything directly in point but we have finally concluded that the judgment should be affirmed. The recitals in the patent affected appellant with notice that B. W. Gunn had theretofore had vested in him the equitable title, and hence appellant was required to ascertain the condition of the title as it existed in Gunn. In doing so he could scarcely escape notice of the deed to B. W. Gunn from his children, and the recitals therein of their mother's community interest. His title in part was in fact derived through this deed. It was in his chain of title, and he was affected with notice thereof by the terms of our registration law. Rev. Stats., art. 4652. With notice of this deed he would, in our judgment, be put upon inquiry as to the interest of each of Sarah Gunn's surviving heirs, and at his peril must provide against all interests descending from her.

This conclusion leads to an affirmance of the judgment, inasmuch as we have been unable to distinguish this case, on the question of warranty presented, from the case of Sanger v. Warren, 44 Southwestern Reporter, 477.

The judgment is affirmed.