Opinion of the Court.

contends that this conclusion was unwarranted by the facts of the case, are as follows: Dignowity, under whom all parties claimed title, had the title and the consequent right of possession of the land, at the time of his supposed deed to McMillan in 1860. The possession is to be presumed to have continued in him, and in those claiming under the subsequent deed of his widow to the city of San Antonio in May, 1875, and the city's deed to the United States in June, 1875. There was no evidence that McMillan, or any one claiming under him, was ever in actual possession of the land. If the title and the right of possession were ever in McMillan, they descended to his daughter Mary and her co-heirs upon his death in 1865. She was then under the disability of infancy, having been born September 11, 1848. On September 11, 1869, she became of age, and the statutes of limitations began to run against her, and could not, by a general rule of law, recognized alike by this court and by the Supreme Court of Texas, be again suspended by the new disability created by her subsequent marriage to Schwalby on January 18, 1871. McDonald v. Hovey, 110 U. S. 619; White v. Latimer, 12 Texas, 61. See also McMasters v. Mills, 30 Texas, 591; Jackson v. Houston, 84 Texas, 622.

But the statutes of limitations of Texas do not appear to run against a suit to recover real estate, except in favor of one in "adverse possession," which is defined to be "an actual and visible appropriation of land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another." Paschal's Digest, arts. 4621-4624; Rev. Stat. §§ 3191-3199. There was no affirmative evidence showing that such adverse possession of the United States, or of their predecessors in title, the city of San Antonio, and Dignowity, began before 1882, at which time Mrs. Schwalby was under the disability of coverture; or who, if any one, before that time, was in actual possession of the land; although Mrs. Dignowity testified that she paid the taxes upon it from 1860 until she conveyed it to the city in May, 1875. The conclusion that the plaintiffs' claim was not barred may, therefore, have rested upon a possible inference of fact, rather than upon a determination of law.

VOL. CLXII-18

Opinion of the Court.

Upon the question whether the deed from Dignowity to McMillan was ever delivered to the grantee, or to any one in his behalf or claiming under him, the evidence was in substance as follows: The deed was executed May 9, 1860, by Mrs. Dignowity, under a power of attorney from her husband; was acknowledged by her on the same day before William H. Cleveland, who was a notary public, and was a lawyer who had sometimes done business for her husband and herself; and was left by her with Cleveland. The consideration named in the deed was $100, only $50 of which was paid; and that was received by her about the time of executing the deed. She testified that she did not know whether or not she ever formally delivered possession of the land to McMillan or his agent; but that she continued to pay the taxes on the land until she sold and conveyed it to the city of San Antonio in May, 1875. The deed to McMillan was not recorded until September 30, 1889, more than twenty-nine years after its execution. There was no evidence where the deed was during that time, or by whom it was left for record; nor was there any explanation of the delay in recording it. Mrs. Schwalby's attorney testified that he never saw her, and did not know her personally; and that he received the deed by mail from Spence, a lawyer and land agent. Spence was the intervenor in this case, claiming title in one third of the land under a deed from McMillan's son, executed, acknowledged and recorded in March, 1889.

This evidence is far from satisfactory as proof of an actual delivery of the deed. But, considering that the deed to McMillan may possibly have come from him into the hands. of his son, and thence into those of Spence, and that some presumption of delivery may arise from the plaintiffs' possession of the deed, we are not prepared to say that the evidence was insufficient, as matter of law, to warrant the conclusion. that the deed was in fact delivered. See Sicard v. Davis, 6 Pet. 124, 137; Gaines v. Stiles, 14 Pet. 322, 327.

The more serious question is whether there was any evidence that the United States took the deed from the city of San Antonio in June, 1875, with notice of a previous convey

ance to McMillan.

Opinion of the Court.

All the evidence which can be supposed to have any bearing upon this point was as follows:

The deed from Mrs. Dignowity to the city of San Antonio was a quitclaim deed; and the mayor testified that, at the time of the purchase by the city, he had notice from Mrs. Dignowity of McMillan's claim. But the deed from the city to the United States was a deed of warranty, conveying this and other lands to the United States for military purposes; the consideration recited therein was not merely the payment of the nominal sum of one dollar, but "divers and other good and sufficient considerations thereunto moving;" and the conveyance was in fact, as appears by the uncontradicted testimony of the mayor, for the very valuable consideration enuring to the city from the establishment of the military headquarters there.

The District Attorney, who made the examination of the title for the United States, testified that he examined the records of the county; that he read the quitclaim deed from Dignowity to the city, and had notice of all its contents; that he found no record of any other deed from Dignowity; and that, after making the examination, he believed the title was good, and so advised the department at Washington, and upon his advice the government took the deed from the city in good faith. Upon cross-examination, he testified that he "had information of the sale to McMillan," but satisfied himself that he had never paid the purchase money; and that the facts that the deed from Dignowity to the city was a quitclaim deed, and described the land as "known as the McMillan lot," created no suspicion in his mind that the title was not all right.

By the statutes of Texas, lands cannot be conveyed from one to another, except by instrument in writing; and unrecorded conveyances of lands are void as against subsequent purchasers for valuable consideration without notice; but are valid as between the parties and their heirs, and as to all subsequent purchasers with notice thereof or without valuable consideration. Paschal's Digest, arts. 997, 4988; Rev. Stat. §§ 548, 549, 4332. These provisions have not been regarded

Opinion of the Court.

as introducing a new rule; but only as declaratory of the law, as recognized in the chancery jurisprudence of England and of the United States. Parks v. Willard, 1 Texas, 350.

A purchaser of land for valuable consideration may doubtless be affected by knowledge which an attorney, solicitor or conveyancer, employed by him in the purchase, acquires or has while so employed, because it is the duty of the agent to communicate such knowledge to his principal, and there is a presumption that he will perform that duty. The Distilled Spirits, 11 Wall. 356, 367; Rolland v. Hart, L. R. 6 Ch. 678, 682; Agra Bank v. Barry, L. R. 7 II. L. 135; Kauffman v. Robey, 60 Texas, 308. But in order to charge a purchaser with notice of a prior unrecorded conveyance, he or his agent must either have knowledge of the conveyance, or, at least, of such circumstances as would, by the exercise of ordinary diligence and judgment, lead to that knowledge; and vague rumor or suspicion is not a sufficient foundation upon which to charge a purchaser with knowledge of a title in a third person. Wilson v. Wall, 6 Wall. 83; Flagg v. Mann, 2 Sumner, 486, 551; Montefiore v. Browne, 7 H. L. Cas. 241, 262, 269; Bailey v. Barnes, (1894) 1 Ch. 25; Wethered v. Boon, 17 Texas, 143. Notice of a sale does not imply knowledge of an outstanding and unrecorded conveyance. Mills v. Smith, 8 Wall. 27; Holmes v. Stout, 2 Stockton, (10 N. J. Eq.) 419; Lamb v. Pierce, 113 Mass. 72.

A valuable consideration may be other than the actual payment of money, and may consist of acts to be done after the conveyance. Prewit v. Wilson, 103 U. S. 22; Hitz v. Metropolitan Bank, 111 U. S. 722, 727; 4 Kent Com. 463; Dart on Vendors, (6th ed.) 1018, 1019. The advantage enuring to the city of San Antonio from the establishment of the mili tary headquarters there was clearly a valuable consideration for the deed of the city to the United States.

A purchaser of land, for value, and without notice of a prior deed, holds and can convey an indefeasible title; and therefore the title, either of one who, without notice, purchases from one who purchased with notice, or of a purchaser with notice from a purchaser without notice, is good. Har

Opinion of the Court.

rison v. Forth, before Lord Somers, Pre. Ch. 51; Boone v. Chiles, 10 Pet. 177, 209; Flynt v. Arnold, 2 Met. 619, 623; 4 Kent Com. 179. While it is. held, in Texas, that a purchaser who takes a quitclaim deed of his grantor's interest only is affected with notice of all defects in the title, yet mere knowledge that the deed is in that form cannot affect the title of one claiming under a subsequent deed of warranty from the grantee. United States v. California Land Co., 148 U. S. 31, 46, 47; Moore v. Curry, 36 Texas, 668; Graham v. Hawkins, 38 Texas, 628. Still less, could oral notice to the mayor of McMillan's claim, not shown to have been communicated to the United States or their attorney, affect their title under the subsequent deed of warranty from the city.

The attorney's "information of the sale to McMillan," with the purchase money unpaid, was evidently no more than of a bargain between Mrs. Dignowity and McMillan, and not of any deed of conveyance. He searched the records, and found no such deed, and advised the United States that the title was good. The deed from Mrs. Dignowity to McMillan, now produced, had then already remained unrecorded for fifteen years; and there is no evidence in whose custody it was, or that the attorney had any reason to suppose that it existed, or could have learned anything about it from Mrs. Dignowity, or knew, or had the means of ascertaining, where McMillan lived, or whether he was living or dead. The mere description of the land as "known as the McMillan lot" raised no inference that it was still owned, if it ever had been, by any one of that name.

The evidence appears to us wholly insufficient, in fact and in law, to support the conclusion that the attorney had any notice of the previous deed to McMillan, or any knowledge of such circumstances tending to prove the existence of such a deed, that he should have considered or treated them as of any weight, or have reported them to the authorities at Washington. The inevitable conclusion, as matter of law, is that the United States acquired a good and valid title, as innocent purchasers, for valuable consideration, and without notice of a previous conveyance to McMillan.