Taylor v. Harrison.

title to the same grantor, and there are no supervening equities, this brings them within the rule prescribed by the statute and recog nized by the decisions. But whether this is the case or not, there is certainly a broad distinction between a sale by the heirs in their own right and one by an administrator, in his representative character, under an order of court, for the payment of debts. If the rights of the creditors are superior to those of the vendee holding by an unregistered deed, and as unquestionably, a purchaser from the administrator holds in privity with the original vendor as fully as a purchaser under like circumstances from the sheriff, there can be no good reason to uphold the title of the one, and to deny that of the other. That the latter is within the protection of the statute is not now an open question in this court. Ayres v. Duprey, 27 Tex. 593; Grace v. Wade, 45 id. 522, and subsequent cases.

In the case of Rogers v. Burchard, the court also held that a quit-claim deed conveys only such right, title, or interest as the grantor had at the time the deed is made, and that a party claiming under such deed cannot be deemed a bona fide purchaser of any greater interest than his grantor then had. Upon the facts exhibited by the record before the court, and with the qualification or explanation given in the subsequent case of Harrison v. Boring, 44 Tex. 255, we think there is no valid objection to the decision of the court upon this branch of the case; though, without observing the distinctions pointed out in the latter case, the opinion in the first of these cases might be supposed to warrant a broader application of the rule announced than the court probably intended it should have. The principle announced in Rogers v. Burchard, as held in Harrison v. Boring, is only applicable "to quit-claim deed, in the strict sense of that species of conveyances," and where its legal import is "a quit-claim, or deed of release of all one's right, title, and interest," which is not intended, and does not purport to convey an absolute right to land, without covenants of warranty, as contradistinguished from a conveyance of the title or chance for title which the grantor may be supposed to have. Whether a deed is of the one character or the other, is not to be determined merely by an omission of the covenant of general warranty of title, but may be inferred "not only from the terms of the deed, but from the adequacy of the price given, and other circumstances attending the transaction" calculated to show the real intent and purpose of the instrument.

Taylor v. Harrison.

The difficulty in the proper disposition of this case is, that the meager statement of facts upon which it was by agreement submitted to the court below, does not sufficiently enlighten us in regard to the "circumstances attending the transaction," to enable us to draw a satisfactory conclusion as to the import and proper construction of the deed from the administrator. We are unable to say what was the character of claims for the payment of which the sale was ordered; or that the creditors for whose benefit the sale appears to have been made were within the protection of the statute; or that the purchaser was without actual notice of the prior deed; or whether or not the price at which the land was sold indicates a sale of the land or a mere claim or chance of title to it. In the case as now presented, we are left to draw our conclusions from the bare order of the court for the sale of the land its sale by the administrator; the confirmation of this sale by the court, and a deed by the court, and a deed by the administrator, as we must infer, in the usual form. These meager facts do not justify us in saying that this was not a but of the chance or claim of title which the estate to it. The fact that the deed given the purchaser does not contain a covenant of warranty is of but little significance, when it is remembered that the administrator cannot bind the estate by such covenants.

sale of land. may have had

But while this is the conclusion to be drawn, as we think, from the statement of facts, it is not sufficiently clear and satisfactory to induce us to render a judgment upon it without giving the parties an opportunity of showing, if they are able to do so, the real character of the transaction, especially as the case was decided in the court below before the decision of the case of Harrison v. Boring by this court.

The judgment is reversed and the cause remanded.

Reversed and remanded.

NOTE BY THE REPORTER.-In Wright v. Lancaster, 48 Tex. 250, an instrument was recorded as follows: "The State of Texas, Kaufman county. Know all men by these presents, that we, E. W. Lancaster and Elizabeth S. Lancaster, of the State and county first mentioned, in consideration of the sum of four thousand dollars to us in hand paid; Reuben Bowen and James R. Lancaster, and George W. Lancaster, and their heirs and assigns forever, all our right, title, claim, and interest, estates and demands, both at law and in equity, and to all three certain pieces or parcel of land situated in said county and State, described as follows, to wit, [the field-notes of the three tracts being here inserted,] with all and singular the hereditaments, appurtenances thereunto belonging." Followed by the attesting clause, and date, signatures and seals. Held, not to be a deed, and as imposing no notice of any conveyance of land.

Taylor v. Harrison.

In Peterson v. Lowry, id. 412, it was intimated that a certificate of acknowledgment, regular upon its face as recorded, could not be impeached by extraneous facts, so as to prevent the record taking effect as notice to subsequent purchasers. In that case the notary, who took the acknowledgment, was not a resident of the county where he took it, and the court said his authentication was a nullity.

The effect upon the rights of subsequent purchasers in good faith of mistakes in the record of conveyances has been several times discussed in the courts of New York. The leading case is Frost v. Beekman, 1 Johns. Ch. 288. It was there held that the registry of a mortgage conditioned to secure $3,000, but by mistake the clerk registered for $300, is notice to subsequent bona fide purchasers to the extent only of the sum expressed in the registry. The chancellor says: "The true construction of the act seems to be that the registry is notice of the contents of it, and no more, and that the purchaser is not to be charged with notice of the contents of the mortgage any further than they may be contained in the registry. The purchaser is not bound to attend to the correctness of the registry. It is the business of the mortgagee, and if a mistake occurs to his prejudice, the consequences of it lie between him and the clerk, and not between him and the bona fide purchaser. The act, in providing that all persons might have recourse to the registry, intended that as the correct and sufficient source of information; and it would be a doctrine productive of immense mischief to oblige the purchaser to look, at his peril, to the contents of every mortgage, and to be bound by them, when different from the contents in the registry. The registry might prove only a snare to the purchaser, and no person could be safe in his purchase without hunting out and inspecting the original mortgage, a task of great toil and difficulty. I am satisfied that this was not the intention, as it certainly is not the sound policy of the statute. This case was subsequently reversed in the Court of Errors (18 Johns. 544), but on another point, and no disapproval of the chancellor's views on the point in question was expressed.

The same point was touched upon obiter, in Ford v. James, 4 Keyes, 300. There the error in the recording was in the description of the premises, by making the starting point to be one hundred and fifty feet easterly from the easterly line or side of Fifth avenue, instead of six hundred and fifty feet, as stated in the deed. Judge CLERKE remarks: "The description of the record in the deed was totally different from that in the deed; so that, if subsequent purchasers before the correction of the record could be affected by a transaction of this kind, there was no notice to them, actual or con. structive."

Peck v. Mallams, 10 N. Y. 518, was a case of registry under the law of 1817, which provided that in the registry should be entered the names of the mortgagors and mortgagees the date, amount, time when payable, the description, and a minute of the certificate of the proof, etc., and that such mortgage should not defeat a bona fide purchaser “unless duly registered as therein aforesaid." The registry stated that the mortgage was registered for and at the request of T. B., acting executor, etc.; and that it was “duly proved” by the mortgagors before T. B., Master in Chancery, etc. This was held by JOHNSON, J., to be insufficient, and by MASON, J., to be sufficient, but the case went off on another point. Judge MASON expressly approved of the chancellor's views in Frost v. Beckman.

In New York Life Insurance Co. v. White, 17 N. Y. 469, it was held that the entry, in the book of mortgages, of a mortgage to the commissioners for loaning the United States deposit fund, out of the order due to its date, and upon a page which should have contained a mortgage several years antecedent in execution, is not notice to a subsequent mortgagee in good faith. By the act the commissioners are to provide a book of blank forms, and enter the mortgages in a regular series, numbering them in the order in which they are taken, without leaving out or defacing any of the blanks. This is substantially the same provision as in our recording act, by which conveyances are to be recorded **in the order and as of the time when the same shall be delivered to the clerk for that purpose. "DENIO, J., observes: "It is a general principle that where the recording of a conveyance is made constructive notice, the record to be effectual must be made according to law," and cites Frost v. Beekman. He further says: "If a county clerk should record

a mortgage or deed in a blank space left in a book which had ceased to be used for current records or in the book in use at the place among records of a date long anterior to the time it was left for record and to its date, it could not be affirmed, that it was recorded

Taylor v. Snow.

according to law, or that it furnished the notice to subsequent incumbrancers or purchasers which the statute had provided for." "The inserting this mortgage in a place where it did not belong, and among the mortgages of a prior date by eight years, was calculated to mislead."

The principal case is in harmony with Bishop v. Schneider, 46 Mo. 472; 2 Am. Rep. 533, but in the absence of any statutory requirement to index a conveyance, the mere neglect of the clerk to index it will not make the record invalid. Id.; Chatham v. Bradford, 50 Ga. 32, 15 Am. Rep. 692; Schcil v. Stein, 76 Penn. St. 398; 18 Am. Rep. 416, and note, 420. In Pringle v. Dunn, 37 Wis. 449; 19 Am. Rep. 772, it was held, under a statute requiring deeds to be witnessed before they could be recorded, that a registration showing no attes tation was invalid as notice to a subsequent purchaser. In this case the effect of indexing was also considered, the statute requiring an index containing certain particulars of the instruments recorded; but inasmuch as the index did not show in this case that the instrument was attested, it was held not to cure the defect of the record.

In Gilchrist v. Gough, decided by the Supreme Court of Indiana, in January, 1879 (19 Albany L. J. 276), it was held, where a mortgage for $5,000 was recorded, without the mortgagee's fault, as being for $500, but in the index it was indexed as a mortgage for $5,000, that the mortgage had priority over a subsequent bona fide mortgage for value only to the amount of $500, and that knowledge in the subsequent mortgagee that such prior mortgage was indexed as a mortgage for $5,000 was not sufficient to charge him with knowledge of the true amount, the statute not requiring the index to state the amount of the mortgage.

TAYLOR V. SNOW.

(47 Tex. 462.)

Judgment against deceased defendant ·

- collateral attack.

A claim of title to land under a sheriff's deed cannot be defeated in a collateral action to try the title, by proof that the judgment defendant was dead at the time when the judgment was obtained and the suit was commenced.

A

CTION to try title. The defendant had judgment and the plaintiff appealed. The opinion states the facts.

James C. Walker, for appellant.

Sleeper, Jones & Kendall, for appellees.

MOORE, J. Appellant, as well as the appellee, claims to daraign title to the land in controversy in this suit, from Claiborne A. Johnson, to whom it was patented, July 17, 1845.

Appellant, who was plaintiff in the court below, claimed to have acquired his title through a deed from the sheriff of Bell county, dated December, 1851, to James A. Graves, as a purchaser at an

Taylor v. Snow.

execution sale, by virtue of a judgment rendered by the District Court of Bell county, in which county the said land was then situated, at its Spring Term, 1857, in favor of James A. and Mary Graves, his wife, administrator, etc., against said Johnson; while appellees deraign their title through a deed dated May 11, 1857, but not recorded until June 1, 1871, from Elizabeth A. Johnson, the mother and sole heir of said Claiborne A. Johnson, the grantee of the land, and as whose property it had been previously sold by the sheriff under said execution.

On the trial of the case, the court instructed the jury, if they believed from the evidence that Claiborne A. Johnson was dead at the time suit by said Graves and wife was commenced, the District Court of Bell county acquired no jurisdiction of the subjectmatter in litigation; that any judgment rendered against a dead man, without making his legal representatives parties, was void; that an execution issued upon such judgment, and all proceedings under it, would be also void, and could not be the foundat.on of a title to the land, and in such event the jury should find a verdict for the defendants.

Evidently this charge of the court is in direct conflict with the law upon the subject, as settled by the repeated decisions of this court. Grassmeyer v. Beeson, 18 Tex. 753; Mills v. Alexander, 21 id. 154; Thouvenin v. Rodrigues, 24 id. 468; Rodriguez v. Lee, 26 id. 32; Bohanan v. Hans, 26 id. 445; Moke v. Brackett, 28 id. 443; Giddings v. Steele, 28 id. 732. And as there can be but little doubt, when the record is examined, that it must have had a controlling influence with the jury in returning a verdict for appellees, unquestionably the judgment must be reversed, unless it plainly appears, looking to the entire record, that appellees should have recovered a judgment, had the instruction given the jury in this particular been altogether unexceptionable; and if appellant had recovered a judgment in the court below, it should be reversed by this court, because not supported or warranted by the evidence.

And such, appellees insist, the record shows, is manifestly the fact in this case; for, conceding it is said that a judgment cannot be impeached in a collateral action, by proof that the person, for or against whom it is rendered, died before its rendition, and that such judgment is valid and binding until avoided by a direct and appropriate proceeding for this purpose-still, as property cannot