first verdict brought in by the jury, and direct them, as was done, to allow appellee said item. Had the item been overlooked until the court was called upon to enter judgment upon the jury's findings, the item being an undisputed one to which appellee was entitled in arriving at the state of the accounts between himself and the appellant, it would have been the duty of the court then to take it into account and allow it in was setting up in his favor and against the plaintiff," nor the statement accompanying it, shows that a special charge to that effect was requested by appellant and refused, or points out any pleadings or evidence calling for such an instruction. At most, it only can be said that the error, if error, was one of omission, and cannot be made a ground for reversal unless a proper special charge supplying the omission was asked by appellant. [14] The twenty-second assignment of er- the judgment rendered. This being true, ror is as follows: "The court erred in submitting to the jury, under section 14, question 12, after the jury had returned a verdict into court, and same had been received by the court, instructing them that they had overlooked one item of $500 against the plaintiff in the McCluney-Borders deal, for which he had not accounted to the defendant, and instructed the jury to charge this amount against plaintiff. This was done over the plaintiff's objection after the verdict had been rendered and received, and, further, the plaintiff objected thereto because the uncontroverted evidence showed that there was an item of $25 received by the defendant from Moseley and Telly, which the defendant admitted he had received and had in his possession, and admitted that it was the partnership property of the plaintiff and defendant, and the court refused to instruct or charge this uncontroverted item of $25 against the defendant." clearly there was no error in instructing the jury to correct their verdict in respect to said item. [15] It is further contended by appellant that the undisputed evidence shows that in arriving at the state of the accounts between himself and the appellee he should have been allowed an item of $25, which was not allowed, and therefore the judgment rendered is excessive in that amount. The appellee denies that appellant's right to this item of $25 was shown by the undisputed evidence, and appellant in his brief fails to point out and show that such was the character of the evidence. We find it is stated in the statement made under the twenty-second assignment of error, just discussed, that: "The evidence shows without conflict that Ray was indebted to the firm of C. J. Hall & Co. in the sum of $25 received by him from Moseley and Telly. He admits this himself." It does not appear that there was any error in this action of the court. The statement in the assignment to the effect that the first verdict was "received" by the court is not correct. It does not appear that such verdict was received and filed. But this was regarded as unimportant. The court charging without conflict that appellant was ened the jury thus: "You are instructed that, in the matter of accounting between C. J. Hall and D. W. Ray, under the instructions of the court in (14) question twelfth, you have overlooked one item of $500 commission on the McCluney-Borders deal, which C. J. Hall in his pleading admits, and which the evidence shows without dispute that C. J. Hall received, and for which he has not accounted to D. W. Ray. You will therefore return to your jury room and properly incorporate this item in your accounting, and reform your verdict in answer to said (14) question twelfth, accordingly." It is not denied by the appellant that this was an admitted item in his pleadings, nor does he deny that the uncontroverted evidence showed that the appellant had received the amount of said item and had failed to account to appellee therefor. The complaint is that the court should not, after the jury came into court with their verdict, and it was discovered that said item had been overlooked, and not considered by the jury in arriving at their verdict, have sent the jury back with the direction to consider and allow said item. There was no error in this action of the court. The appellee's right to have the item of $500 charged to appellant in the accounting prayed for by appellant not being disputed, it was entirely proper for the court to decline to receive the But the page or pages of the statement of facts where the evidence may be found show titled to allowance of said item of $25 is not given, nor is the page of the statement of facts or record showing the admission claimed given. The statement of facts sent to this court contains 379 pages, and the testimony of the appellee, Ray, covers many pages, the exact number of which we have not ascertained, but to search the statement of facts or go over the testimony of Ray to ascertain whether or not appellant is correct in his statement to the effect that appellee admitted that he was entitled to be credited with the $25 in question, or that the evidence showed such right without conflict or dispute, would involve so much time and labor that it would be entirely unreasonable and out of the question to expect us to enter upon any such investigation. [16] The contention that the trial court erred in taxing the costs against appellant also will be overruled. The appellee recovered upon both phases of the case involved, and was entitled to recover all costs. The fact that appellant recovered some of the items in controversy in the accounting did not entitle him to recover any part of the costs. The judgment of the court below is in all things affirmed. Affirmed in part, and in part reversed and LUBBOCK STATE BANK et al. v. H. O. rendered. (Court of Civil Appeals of Texas. Ft. Worth. 1. VENDOR AND PURCHASER 261 - BONA [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. 261.] 2. VENDOR AND PURCHASER TY-ISSUANCE. 261-VALIDI Where a purchaser, who had given vendor's lien notes in payment, retransferred the land on condition that she should be discharged from payment of such notes, and the vendor retained the notes, the notes are on reissue thereafter valid as against the vendor. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. 261.] Sayles, Sayles & Sayles, of Abilene, and Benson & Spencer, of Lubbock, for plaintiffs in error. Kirby, Scarborough & Davidson and H. A. Tillett, all of Abilene, for defendants in error. CONNER, C. J. This contest involves the relative value of certain vendor's lien notes, each party claiming priority of liens upon the N. W. 14 of section 14, Lunatic Asylum land situated in Taylor county, Tex. The contest arises out of the following state of facts, as shown by the trial court's conclusions and by an agreed statement found in the record, viz.: On August 11, 1910, the quarter section of land mentioned was owned in the separate right of Mrs. May Braddy. She on that day, joined by her husband, M. T. Braddy, conveyed the land to Eliza Gregg, for which Mrs. Gregg executed her 10 promisSory notes, numbered from 1 to 10, respectively, for $640 each and payable yearly after November 1, 1910. The deed reserved the vendor's lien to secure the payment of the notes, and it was recorded on the 27th day of August, 1910. In September following this conveyance, Mrs. Braddy transferred notes A vendor of land, who received in payment 10 vendor's lien notes, transferred notes 2, 3, and 4 without executing any instrument in writing, and no written evidence of such transfers was recorded. Thereafter the vendee, be- 2, 3, and 4 of the above series to certain ing unable to meet the notes, retransferred the land on consideration that the vendor should assume and become liable to pay all debts and obligations against it. Subsequently by written agreement duly recorded notes 1 and 5 of the vendor's lien notes were disposed of to another. Thereafter the property was again sold, the vendor receiving 10 other vendor's lien notes, By this conveyance, which was not recorded, the grantee assumed payment of all outstanding indebtedness. The husband of the vendor transferred the last series of notes to plaintiffs in error, assuring them that the land was subject to no other lien except that of notes 1 and 5. The conveyance of notes 1 and 5 recited that the last 5 of that series had been fully paid, and that the second, third, and fourth notes should be an inferior lien to 1 and 5. Held, that the holder of the last series of vendor's lien notes had a lien superior to that of the holder of notes 2, 3, and 4 of the first series; there being nothing in the record to give constructive notice, and there being nothing to cast suspicion on the statement of the husband. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. 261.] 4. VENDOR AND PURCHASER TRATION STATUTES. 261-REGIS As the purchase of a vendor's lien note carries with it as an incident the lien, and the latter is within the registration statutes, one desirous of protecting his lien should secure a written assignment and record it. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. 261.] of the defendants in error to secure certain * * * are Error from District Court, Taylor County; hereby made a second and inferior lien to the Thomas L. Blanton, Judge. Action between the Lubbock State Bank and others and the H. O. Wooten Grocery Company and others. There was a judgment for the latter, and the former bring error. * * * and two notes * * * assigned, M. T. Braddy, conveyed the quarter section | cited. The doctrine of constructive notice, of land mentioned to W. F. Braddy, who which is the reliance of defendants in error gave therefor his 10 promissory notes, num- in the present case, is said to be a harsh one bered from 1 to 10, respectively, for $350 each, and "assumed the payment of all outstanding indebtedness." This deed was never recorded. The notes of this series which also reserved a lien on the land mentioned were made payable to M. T. Braddy, and he thereafter, before maturity and for a valuable consideration, conveyed all of the series to the respective plaintiffs in error. To each of plaintiffs in error to whom the series were so successively transferred, M. T. Braddy personally represented at the time of the transfer that the notes of the series "were the only liens against said land (the quarter section hereinbefore mentioned) except $1,300 due Simmons College." It was further agreed, and the court so finds, that none of the holders of this series in fact examined the records of Taylor county, and that "except for such notice, if any, as may have been given by the records of Taylor county and deed to W. F. Braddy," they are each "bona fide holders in good faith for value." arising out of motives of public policy in the enactment of our registration statutes. See Call v. Hastings, 3 Cal. 179, and Vizzard v. Taylor, 97 Ind. 90. By the application of the doctrine of constructive notice it often happens that great injury is brought about to a purchaser of lands, mortgages, or other property, whose actual good faith cannot be questioned. No sympathy, however, is to be extended to a purchaser who is plainly notified by the proper record of an opposing claim. The law imposes upon him the duty of examining the records whether he actually does so or not, and a failure to examine the records, and to thus receive actual notice of the opposing claim or right, is his own fault, and it may be well said that he deservedly sustains any loss that results. Ordinarily, too, the doctrine has been so extended as that actual knowledge on the part of a subsequent purchaser of facts sufficient to put a prudent person on inquiry will affect him with notice of all that the inquiry would have developed. But regardless of the question as to how far, if at all, the principle last mentioned can be made to apply in this case, it is apparent that no knowledge of any character other than as must be imputed to plaintiffs in error from the records of Taylor county was shown. On the contrary, plaintiffs in error were expressly assured by M. T. Braddy that the only prior lien was the one in favor of Simmons College. Nothing appears to cast suspicion upon this statement. He was husband and agent of the wife in the transfer of the notes and a grantor in the deed to the maker. We find noth On the above state of facts, the court concluded as a matter of law that the notes held by Simmons College constituted a first lien upon the quarter section of land in question, and that notes 2, 3, and 4 of the Gregg series of notes owned by defendants in error constituted a second lien, and that the notes given by W. F. Braddy as hereinbefore mentioned and owned by plaintiffs in error constituted the third lien. Judgment was rendered in accordance with the conclusion so stated, and the owners and holders of the second series of vendor's lien notes executed by W. F. Braddy have sued out this writing to suggest that plaintiffs in error were of error against the owners and holders of notes 1, 2, 3, and 4 of the first series executed by Mrs. Gregg. All parties agreed that Simmons College is entitled to priority of lien, and that the judgment in favor of Simmons College to that effect is correct. The real contest is between the owners of notes 2, 3, and 4 of the Gregg series, and the owners of the second series of notes given by W. F. Braddy. As to these notes we think the court erred in his conclusion of law, and that the plaintiffs in error, as owners of the W. F. Braddy series of notes, are entitled to priority over the defendants in error, who are owners, as stated, of notes 2, 3, and 4 of the Gregg series. guilty of bad faith in failing to inquire of May Braddy, the wife, or that an inquiry from her would have resulted in information conflicting with the husband's statement. Mere carelessness in this respect will not amount to bad faith in the absence of cause for suspicion. Larzelere v. Starkweather, 38 Mich. 96. Indeed, it is admitted, as well as expressly found by the court, that plaintiffs in error were bona fide purchasers for value and without notice of the claims of the defendants in error, who own notes 2, 3, and 4 of the Gregg series, "except such notice, if any, as may have been given by the records of Taylor county and deed to W. F. Braddy." [1-3] It must be admitted, we think, that The only recitation in the W. F. Braddy deed the plaintiffs in error, as purchasers of the relied upon, or that can be relied upon, to W. F. Braddy notes before maturity and for show notice that notes 2, 3, and 4 of the value, are entitled to a priority of lien Gregg series were outstanding, is the reciclaimed by them as against the unrecorded tation that W. F. Braddy "assumed the paylien of defendants in error, unless, as the ment of all outstanding indebtedness." This court below evidently concluded, the records would very naturally be referred by each of Taylor county were sufficient to give several purchaser of the W. F. Braddy notes plaintiffs in error notice of the liens claimed to notes 1 and 5 of the Gregg series held by by defendants in error. See Henderson v. Simmons College. This is especially true in Pilgrim, 22 Tex. 464, and cases hereinafter view of M. T. Braddy's assurance, to the ef fect that these latter notes were the only ones that were outstanding. The records of Taylor county exhibited but little, if anything, more forceful in the way of notice. There was no transfer of notes 2, 3, and 4 of record, and no recitation in any deed through which plaintiffs in error claimed requiring such conclusion. It is insisted that May Braddy's assumption of all outstanding indebtedness in the deed of reconveyance by Mrs. Gregg so requires. But not so. The deed does not declare that the Gregg notes have been conveyed. The notes were "outstanding" as to Mrs. Gregg. None of them, so far as the record shows, were then surrendered and delivered up to Mrs. Gregg, and the "assumption" was entirely consistent with the idea that Mrs. Gregg so required, in view of their nondelivery to her, as a protection to a subsequent circulation of her notes, or as formal assurance that they were yet in possession of May Braddy. It is insisted that it is unreasonable to infer that Mrs. Braddy would "assume" the payment of notes still held by her. But it is to be borne in mind that she did do so as to at least part of the notes, for it is not pretended that notes 6, 7, 8, 9, and 10 of the Gregg series ever passed out of Mrs. Braddy's hands, and the argument based on the assumption of Mrs. Braddy applies to all notes of this series alike. Indeed, it is not an unreasonable inference that at the time of the reconveyance Mrs. Braddy held and retained all of the Gregg notes, with the knowledge or consent of Mrs. Gregg, either because they were not at the time readily obtainable for surrender or immediate destruction, or with a possible view on Mrs. Braddy's part of a subsequent transfer in the nature of a reissuance of the notes which she could lawfully do and which would be effective in the hands of a purchaser as against the land and Mrs. Braddy at least. See 2 Daniel on Negotiable Instruments, § 1233. This appears in fact to have been done as to part of the notes, for the assignment of notes 1 and 5 to Simmons College was on February 12, 1912, following the reconveyance of Mrs. Gregg on November 24, 1911. In defendants in error's brief before us it is argued that this transfer took place on February 5, 1911. While the written transfer to Simmons College as it appears in the statement of facts bears this date immediately above the signature of M. T. Braddy and May Braddy the acknowledgment bears the date of February 12, 1912, and its record was on February 13, 1912. The formal agreement of the parties hereto, as found in the record, is that: "Thereafter (viz., after the reconveyance by Mrs. Gregg on November 25, 1911) on the 5th day of February, 1912, M. T. Braddy and May Braddy executed the following instrument to Simmons College." The instrument is then set out. The court's finding on this subject is "that on the wife, May Braddy, executed the following instrument to Simmons College," and this finding is not questioned by any assignment of error. So that it must be held that the transfer to Simmons College did not precede, but was subsequent to, Mrs. Gregg's reconveyance. But to close the subject we conclude that the inferences to be drawn from the mere assumption of Mrs. Braddy in the reconveyance to her are far too inconclusive to amount to notice to the subsequent purchaser of the W. F. Braddy notes that notes 2, 3, and 4 of the Gregg series had been assigned, notwithstanding M. T. Braddy's assurances of contrary effect. * The only other recitations relied upon as constituting the necessary notice are those found in the transfer to Simmons College. To repeat, this instrument contains no declaration that notes 2, 3, and 4 of the Gregg series had been "conveyed," at any time or to any person. It merely recited that the last five notes of the series had been "fully paid" and canceled, and that "the second, third, and fourth, for full value in hand paid, * are hereby made a second and inferior lien to the two notes assigned, and said second lien notes are so indorsed." None of these recitations are necessarily inconsistent with the conclusion that all of the series were actually held by and subject to the control of May Braddy. If so, she could, as an inducement to the sale of notes 1 and 5, cancel the last five of the series and postpone the lien of notes 2. 3, and 4 to that of Simmons College. The recitations favor, rather than otherwise, the conclusions that Mrs. Braddy held and controlled all of the notes at the time. She purported to deal with them all as the owner. She sold two. She in effect canceled five, and constituted three a second lien. This she certainly had no right to do if notes 2, 3, and 4 had been conveyed and held by others. It is significant, too, that the terms used relating to notes 2, 3, and 4 are used in the present tense. They are not that the notes had been made "second and inferior liens" and had been "so indorsed," but that they "are hereby" so made, and that they "are so indorsed." As if to render the view of the recitations here presented at least forceful, we find, as shown in the statement of facts and nowhere questioned, the following indorsement on note 4 of the Gregg series, viz., "This note is hereby made a second lien on the land herein described this February 5, 1912." Signed at right angle with the indorsement is the name, "May Braddy." Note No. 3 has the same signature and indorsement, except that the date is given as "February 5, 1911," the indorsement on note No. 2 is dated "February 5, 1912," but the name of May Braddy does not appear to have been signed. In the respects pointed out this case is to be distinguished from that of Waggoner v. "It was within the power of the plaintiff to have taken a written assignment of the venas the law required, and thus to have secured dor's lien, and to have placed it upon record himself against the acts of the original owner of the lien. The land and mortgage company had no such opportunity for guarding against neglects the performance of a duty enjoined, or the wrong; and it must be held that he who the exercise of a privilege granted for his security, must suffer the loss, rather than one who was not in a position to secure that protection." These observations apply with very potent Defendants effect to the case now before us. in error had it in their power to require written transfers to them and to have had such transfers recorded. Had they done so, they would have given an unmistakable notice to all the world that they were the owners of and claiming the lien they now assert, and thus have rendered legally impossible any injury by reason of fraud on the part of May Braddy, or of her agent, M. T. Braddy, in representing that no such lien existed. But, not having done this as it was their legal duty to do, we cannot, on the one hand, in their behalf indulge mere inferences of unsatisfactory character to supply what should have been otherwise plainly shown, and, on the other hand, require of plaintiffs in error the acceptance of doubtful warnings which should have formally and certainly appeared upon the public records. ly relied upon by defendants in error. In that case there was an unequivocal recitation that the grantor in the deed, under whom the defendant was claiming as an innocent purchaser without notice of an unrecorded deed to another, had theretofore conveyed the land, and the Supreme Court held that such recitation was distinct notice that the title was not in the grantor under consideration, and that he therefore could convey none. Here, there was no recitation of a conveyance of notes 2, 3, and 4 of the Gregg series; such conclusions can only be reached by inferences of uncertain, shifting character. The rule without doubt is that purchasers for value and without actual notice of previous transfer who have not examined the record are only affected by construction with notice of such facts as appear upon the record. As to them no duty of inquiry beyond this exists, unless the recitations of the record are such as to plainly impose the duty. See Adams v. West Lumber Co., 162 S. W. 974, writ of error denied 165 S. W. xv; First Nat. Bank of Aubrey v. Chapman, 164 S. W. 900; Hassard v. May, 152 S. W. 665; Drumm Comm. Co. v. Core, 47 Tex. Civ. App. 216, 105 S. W. 843; Moran v. Wheeler, 87 Tex. 179, 27 S. W. 54; Southern Bldg. & Loan Ass'n v. Brackett, 91 Tex. 44, 40 S. W. 719; Buchanan v. Wren, 10 Tex. Civ. App. 560, 30 S. W. 1077; Turner v. Grobe, 44 S. W. 898; Rotan v. Maedgen, 24 Tex. Civ. App. 558, 59 S. W. 585; Racouillat v. Rene, 32 Cal. 450. It was held by this court in Bank v. Chapman, supra, following Wilson v. Denton, 82 Tex. 535, 18 S. W. 620, 27 Am. St. Rep. 908, that the ordinary rule of constructive notice, such as putting a purchaser upon inquiry, has no application to a purchaser of negotiable paper for value before maturity. In such cases the question is one of bona or mala fides only. If in such cases the purchaser is without notice of facts sufficient to show bad faith on his part, he takes the paper free from any and all undisclosed defenses arising subsequent to the notes' execution. The right here insisted by defendants in error is to satisfy their notes out of the land in question to the entire exclusion of plaintiffs in error, if need be, thus, to that extent, seeking to strip the notes held by plaintiffs in error of all or a material part of their value. In this respect the effect and nature of the defense or right asserted is the same as if the attack was di-ply, until the case was called for trial, with an rectly upon the notes given by W. F. Braddy and purchased by plaintiffs in error. [4] It was distinctly held in Henderson v. Pilgrim, 22 Tex. 464, and reaffirmed in Moran v. Wheeler, 87 Tex. 179, 27 S. W. 54, that the purchase of a vendor's note carries with it, as an incident, the lien, and that the latter is within our registration statutes. It was said of the note and parties under consideration in the latter case: We conclude that the judgment in favor of Simmons College should not be disturbed, but that, as to plaintiffs and defendants in error, the judgment should be reversed, and judgment here rendered for the plaintiffs in error establishing the priority of their liens over the lien of defendants in error. Judgment is rendered accordingly. ETHERIDGE et al. v. CAMPBELL. (No. 7370.) Dallas. (Court of Civil Appeals of Texas. 1. CONTINUANCE 26-GROUNDS-ABSENCE of the absence of witnesses who were outside The denial of a continuance sought because the state and the procurement of whose testimony would cost several hundred dollars was not erroneous, where no diligence was shown to procure the testimony of such witnesses, though applicants set up as their excuse for want of diligence the failure of the adverse party to com order requiring a bond for costs. [Ed. Note.-For other cases, see Continuance, Cent. Dig. §§ 74-93; Dec. Dig. 26.] 2. TRESPASS TO TRY TITLE 39-EVIDENCE OF TITLE-TRANSFER OF NOTES. Where, in an action of trespass to try title, the question of title depended on whether the former owners of the property in controversy, had transferred vendor's lien notes retained by them, it appeared that several years had elapsed, and that positive evidence relative to the details of such transfer was not obtain For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |