English v. Plumlee

HIGGINS, J.

This suit was brought by Plumlee against English to recover two sections of public school land in Loving county, awarded to P. M. Yell by the state on October 6, 1924, and to remove cloud from title.

On November 12, 1924, Yell and wife executed an oil and gas lease upon the land to J. S. Yell, who assigned the same to English, on March 10, 1925. The lease was filed for *923 record December 17, 1924, and ttie assignment was filed April 1, 1925. Plumlee purchased the land from P. M. Hell and wife by deed dated December 13, 1924, filed for record June 24,1925. The deed recited a consideration of $10 and other valuable considerations and the assumption by the vendee of the payment of $2,800.48, due the state as purchase money. The case was tried without a jury, and judgment rendered in favor of the plaintiff for the land, and canceling the above-mentioned lease and assignment .as a cloud upon the title.

The lease antedated the conveyance -to appellee, and the latter acquired his title subject to the lease unless he is entitled to the protection accorded innocent purchasers for value without notice. Article 6627, K. S. 1925. The burden of proving his status .as such rested upon appellee. Kyle v. Davidson, 102 Tex. 227 , 115 S. W. 28 . It is shown he purchased without notice. Plumlee testified he paid Yell for the land “in money,” which can relate only to the cash consideration of $10 received in the deed. Payment of the consideration upon execution of the deed or before notice of antecedent unrecorded claims must be shown in order to entitle him to protection. If partial payment be shown, protection pro tanto only will be accorded. Fraim v. Frederick, 32 Tex. 294 ; Huyler v. Dahonry, 48 Tex. 234 ; Durst v. Daugherty, 81 Tex. 650 , 17 S. W. 388 ; Batts v. Scott, 37 Tex. 59 .

The land in question is public free school land, incumbered by lien in favor of the state to secure the payment of purchase money amounting to $2,800.48.

Appellee assumed, the payment of this sum, but did not show he had become the substitute purchaser from the state as is authorized by chapter 57, Acts of Thirty-Seventh Legislature. Had this been shown, the obligation of P. M. Yell to the state would have been canceled and appellee would have become unconditionally bound to the state to pay the same. This, we think, would have constituted him a purchaser for value. Dodd v. Gaines, 82 Tex. 429 , 18 S. W. 618 ; Watkins v. Sproull, 8 Tex. Civ. App. 427 , 28 S. W. 356 ; Cameron v. Romele, 53 Tex. 238 ; Le Page v. Slade, 79 Tex. 473 , 15 S. W. 496 ; Tillman v. Heller, 78 Tex. 597 , 14 S. W. 700 , 11 L. R. A. 628, 22 Am. St. Rep. 77 ; Davis v. Carter, 55 Tex. Civ. App. 423 , 119 S. W. 724 .

The appellee having failed to show that he was a purchaser for value, the judgment must be set aside. It may be that this defect in the proof may be supplied upon retrial, and the case will be remanded rather than here rendered.

It is contended the judgment should be upheld upon the theory that the lease and assignment were executed for the purpose of defrauding appellee. The trial court did not file separate findings and conclusions, but from the recitals in the judgment it is apparent it was based upon the theory that ap-pellee was a purchaser for value without notice. Some importance also seems to be attached to the fact that the lease “was not recorded, as required by law, until after the purchase of said land from the said P. M. Yell and Winifred Yell, husband and wife, by the plaintiff, M. D. Plumlee.” The evidence is wholly insufficient to show that the lease and assignment were executed and withheld from the record in pursuance of a design to defraud the purchaser of the land from P. M. Yell and wife as by the plaintiff alleged.

The fact that the lease was not recorded until after the conveyance to appel-lee did not affect its validity, as between the parties thereto nor as to third persons purchasing from P. M. Yell and wife, unless they were purchasers for value without notice, and, as shown above, appellee was not shown to be such a purchaser, except to the extent of $10 paid. «This sum was a mere nominal consideration, perhaps insufficient to entitle appellee to any protection (Nichols-Stuart v. Crosby, 87 Tex. 443 , 29 S. W. 380 ), but, upon retrial, there is no reason why he should not be protected pro tanto if it be shown that he purchased without notice. As to the protection to be thus accorded, see Durst v. Daugherty, supra. As to the matter of defective acknowledgments in the appellant’s chain of title and improper registration, this is unimportant. Derrett v. Britton, 35 Tex. Civ. App. 485 , 80 S. W. 562 . As between the parties to the lease and the assignment, the acknowledgments of P. M. Yell and J. S. Yell were not essential to their validity nor proper record of the instruments necessary. Article 6627, Eevised Statutes 1925.

There is nothing to show any necessity for the joinder of P. M. Yell’s wife in the execution of the lease.

Eeversed and remanded.