Summary
indicating that first-filed instrument provides notice to later purchaser of same property interest
Summary of this case from Opinion No. JC-0323Opinion
No. 4191.
May 19, 1932. Rehearing Denied June 9, 1932.
Error from District Court, Gregg County; Harry A. Dolan, Judge.
Suits by George Anderson and others against R. C. Barnwell and others, and by the same plaintiffs against E. H. Brawley and others. To review the judgment, plaintiffs bring error.
Modified, and, as modified, affirmed.
George Anderson and his wife, Ella Anderson, and B. P. Seay and the Cranfill-Reynolds Company brought suit against R. C. Barnwell, Donald W. Moore, Mullendore Trust Company, Thomas N. Berry, and R. Jungbecker in the form of an action in trespass to try title to specially described 45.5 acres out of the northeast corner of a 100-acre tract of the Charles H. Alexander survey, and 4.5 acres specially described and a part of the P. McAnally survey. Thereafter, on July 2, 1931, the plaintiffs filed a first amended original petition in this suit, in substance, making as additional parties defendants in such suit E. H. Brawley, Jake L. Hamon, and Joseph M. Weaver and the Magnolia Petroleum Company. The same plaintiffs mentioned above also on February 19, 1931, brought a suit against E. H. Brawley, Jake L. Hamon, and Joseph M. Weaver in the form of an action in trespass to try title to specially described 30 acres out of the north end of an 80-acre tract of the P. McAnally survey, and specially described 50 acres out of the south part of a 100-acre tract of the Charles H. Alexander survey. The original petition in this suit was not amended. Each of the suits named involved litigation as respects distinct and separate conveyances made by the plaintiffs George Anderson and wife; one of the conveyances being to the Rembert National Bank in 1925 and the other conveyance being to E. H Brawley in 1928. It was the contention of the plaintiffs in such suits that each of the conveyances named were in fact a mortgage of a part of the homestead and there fore legally void. The field notes, however, set out in the two conveyances appear to a certain extent to overlap and conflict, and seemingly because of this situation the court, upon the call of the cases for trial on July 6, 1931, at the instance of the plaintiffs, directed the two cases to be tried along together as consolidated causes, which was accordingly done. The statement made below clearly outlines the two cases and the controversy between the parties.
First, the plaintiff George Anderson acquired from the owner by deed of October 7, 1899, 80 acres of land of the P. McAnally survey. He also acquired by deed of October 22, 1900, 100 acres of land of the Charles H. Alexander survey. The two deeds were duly and timely registered. The Alexander survey and the McAnally survey were both duly patented surveys and adjoined each other. The 180 acres of land so acquired by George Anderson formed a solid tract, and he and his wife and children resided thereon, occupying and using the same as their homestead. It was proven on September 10, 1930, prior to the filing of the suit in February, 1931, that George and Ella Anderson executed an oil and gas lease to B. P. Seay covering the 180 acres of land. The lease was duly recorded on September 11, 1930. This lease was subsequently assigned to Cranfill-Reynolds Company. The assignment was recorded February 12, 1931. George Anderson and wife, Ella Anderson, also on September 27, 1930, duly executed a mineral deed conveying to Palmer Bradley one-half undivided interest in all of the oil royalty of 130 acres of the land; 30 acres being out of the 80 acres of the McAnally survey and 100 acres being on the Alexander survey. This deed was duly recorded September 27, 1930. Then Palmer Bradley on February 9, 1931, conveyed the one-half undivided interest in the oil royalty to B. P. Seay, which conveyance was duly recorded on February 14, 1931.
As respects the suit against R. C. Barnwell and others: On February 27, 1925, George Anderson and his wife, Ella Anderson, executed and duly acknowledged a conveyance to the Rembert National Bank of 50 acres of the 180 acres of land acquired by them; 4.5 acres being out of the P. McAnally and 45.5 acres being out of the Charles H. Alexander survey. There was no reservation or exclusion in the deed of any mineral rights. The instrument appears on its face in the form of an absolute deed with general warranty. It was duly registered in the record of deeds in the county clerk's office on March 2, 1925. Thereafter, on January 3, 1931, the Rembert National Bank executed and duly acknowledged a conveyance, in form a deed with restricted warranty, to R. C. Barnwell of the 50-acre tract. It was duly registered in the deed records in the county clerk's office on January 3, 1931. R. C. Barnwell on January 5, 1931, executed to Donald W. Moore an oil and gas lease of the 50 acres. This lease was duly registered on January 9, 1931. Donald W. Moore duly assigned the lease to Mullendore Trust Company and Thomas N. Berry. R. C. Barnwell conveyed by deed of January 5, 1931, to Donald W. Moore an undivided one-half interest in the gas and oil royalty in the 50-acre tract. This deed was recorded January 9, 1931. Donald W. Moore by deeds conveyed to the other defendants in that suit an interest in all mineral rights and oil royalty in the 50 acres. R. Jungbecker was deeded a one-ninth undivided interest in the oil royalty on March 4, 1931, and the deed was recorded March 13, 1931. The plaintiffs in the suit other than George and Ella Anderson were claiming mineral interests and mineral leases under George and Ella Anderson. The plaintiffs were claiming that the conveyance made on February 27, 1925, by George and Ella Anderson to the Rembert National Bank was void because the conveyance was in fact a mortgage covering land a part of the homestead, and that R. C. Barnwell had notice thereof at the time of the deed to him. The defendant R. C. Barnwell pleaded an outright purchase of the land, and he and the others further set up, besides not guilty, that they were innocent purchasers for value, without notice, and estoppel against Anderson and wife.
As applicable to that suit, the following are the issues submitted to the jury and the answers made thereto:
"2. Do you find from a preponderance of the evidence in this case that at the time the instrument dated February 27, 1925, from George and Ella Anderson to the Rembert National Bank was executed, said George and Ella Anderson were using and occupying the land in question as their homestead?" Answer: "Yes."
"3. Do you find from a preponderance of the evidence in this case that the instrument dated February 27, 1925, from George and Ella Anderson to Rembert National Bank was intended by the parties thereto, when the same was executed, to secure an indebtedness of George Anderson to said bank?" Answer: "Yes."
"4. State whether or not you find from a preponderance of the evidence in this case that at and before the time the conveyance was executed by Rembert National Bank to R. C. Barnwell, R. C. Barnwell agreed with George Anderson and with said bank that R. C. Barnwell would convey said land to George Anderson and permit said George Anderson to pay said R. C. Barnwell installments the amount of the indebtedness owing to said bank?" Answer: "Yes."
"6. Do you find from a preponderance of the evidence in this case that after the execution of the instrument to Rembert National Bank on February 27, 1925, George Anderson and wife have continued, down to this time, to use and occupy the land therein described by themselves and by their tenants as a part of their home?" Answer: "Yes."
"7. If you have answered special issue No. 6 in the affirmative, then state whether you find from a preponderance of the evidence that such continued use and occupancy of said land after the execution of said deed, together with the other facts and circumstances in evidence before you, was sufficient to cause a reasonably prudent person to inquire whether George Anderson and wife still claimed to own said land?" Answer: "Yes."
"8. If you have answered special issue No. 7 in the affirmative, then state whether you find from a preponderance of the evidence in this case that had such inquiry been made the same would have disclosed the fact that George Anderson and his wife were claiming the land?" Answer: "Yes."
"13. Do you find from a preponderance of the testimony that at the time Donald W. Moore purchased the oil, gas and mineral lease from R. C. Barnwell covering fifty acres of the land in controversy in this suit, Donald W. Moore saw the deed from George Anderson and wife, Ella Anderson, to the Rembert National Bank, or made an investigation of the records to ascertain whether George Anderson and wife, Ella Anderson, had executed a deed covering the land in controversy?" Answer: "Yes."
"14. Do you find from a preponderance of the testimony that at the time Donald W. Moore purchased the oil, gas and mineral lease in question, did Donald W. Moore rely either upon the deed exhibited to him if it was, or upon the record showing a deed from George Anderson and wife, Ella Anderson, to the Rembert National Bank?" Answer: "Yes."
"15. Do you find from the preponderance of the evidence that at the time the defendant, Mullendore Trust Company and Thomas N. Berry purchased the oil, gas and mineral lease from Donald W. Moore, did such defendants from the abstract, from the deed, or from the records ascertain that George Anderson and wife, Ella Anderson, had executed a deed to the land covered by such lease to the Rembert National Bank?" Answer: "Yes."
"16. Do you find from a preponderance of the evidence that at the time the Mullendore Trust Company and Thomas N. Berry, the defendants, purchased the oil, gas and mineral lease from Donald W. Moore, that such defendants relied upon the fact that George Anderson and wife, Ella Anderson, had executed a deed to the Rembert National Bank covering 45 1/2 acres of land upon which they purchased the oil, gas and mineral lease?" Answer: "Yes."
"21. Do you find from a preponderance of the evidence that at the time R. C. Barnwell purchased the land involved from the Rembert National Bank, that said bank exhibited the deed from George and Ella Anderson, or that he examined the Deed Records and found such a deed covering the land which he purchased?" Answer: "Yes."
"23. Do you find from a preponderance of the evidence that at the time R. C. Barnwell took the deed from the bank that he knew that George Anderson was claiming title to the land?" Answer: "Yes."
There is evidence to warrant the jury findings upon issues 2, 3, 4, and 23, and we here adopt the answers so made as findings of fact, that the conveyance from George Anderson and wife to the bank was not an outright sale, but was intended as a mortgage of the 50 acres of the homestead tract, and that R. C. Barnwell had actual notice of the transaction between the bank and the Andersons and was not an innocent purchaser. Answers to issues 6, 7, and 8 are not challenged on appeal, and are here accepted as findings of fact. There is evidence showing, in substance, that Donald W. Moore acquired from Mr. R. C. Barnwell both a lease and a one-half undivided interest of the royalty of the 50 acres, paying $1,125 therefor. In the negotiation Mr. Barnwell exhibited to Mr. Moore the original deed from George Anderson and wife to the bank, and a certified abstract of title made by the Gregg County Abstract Company. The abstract showed the deed from the bank to R. C. Barnwell. Mr. Moore made no other investigation than that of the abstract and the original deed to the bank. Mr. Moore relied upon the record title as set out in the certified abstract of title. Mr. Moore for a valuable consideration conveyed the lease and the one-half royalty interest to Thomas N. Berry and the Mullendore Trust Company who saw the abstract of title and had it examined by lawyers and received a favorable opinion from them before purchase and making the agreed payment. In such circumstances the findings of the jury as to issues 13, 14, 15, and 16 are sustained and here adopted as findings of fact. There is no pretense in the evidence that the defendants, or any one of them, had actual notice of the fact that the conveyance from George Anderson and Ella Anderson to the Rembert National Bank was intended as a mortgage, or had any notice or knowledge of the transaction. The evidence warrants the finding of fact here made that the defendants named in the suit, and each one of them except R. C. Barnwell, acquired the lease and the one-half royalty interest in good faith for a valuable consideration and without notice or knowledge of the transaction between the bank and the Andersons or of the fact that the conveyance was intended as a mortgage and not an absolute sale. We make the further finding of fact that the certificate of title made by the abstract company, which the defendants relied upon, did not show the conveyances from George Anderson and wife, Palmer Bradley, and B. P. Seay, respectively, of date September 10, 1930, and September 27, 1930, but that the clerk's records showed the filing for registration of such instruments respectively on September 11, 1930, and September 27, 1930. The defendants did not examine the public record book of the county clerk's office.
As respects the suit against E. H. Brawley and others: George and Ella Anderson on December 1, 1928, executed and duly acknowledged a conveyance to E. H. Brawley of 80 acres of the 180 acres acquired by them; 30 acres being out of the McAnally survey and 50 acres out of the Alexander survey. The instrument appears in form a deed with general warranty, and recites as the consideration the sum of $700 paid. There was no reservation or exclusion in the deed of any mineral rights. The conveyance was duly registered on December 5, 1928. On January 2, 1931, E. H. Brawley and wife executed an oil and gas lease of the 80 acres to Donald W. Moore. Donald W. Moore then duly assigned the lease to Jake L. Hamon and Joseph M. Weaver, who in turn duly assigned the same to the Magnolia Petroleum Company. The plaintiffs were claiming that the conveyance made by George and Ella Anderson to E. H. Brawley was void because not an absolute sale but intended as a mortgage of the 80 acres which was a part of the homestead of George and Ella Anderson. The plaintiffs other than George and Ella Anderson were claiming mineral interests and mineral leases in the 80 acres under conveyances of George and Ella Anderson. E. H. Brawley pleaded, besides not guilty, that the deed made to him by George and Ella Anderson was in fact an absolute sale and so understood and intended of the 80 acres and was in all things legally valid. The defendants Hamon, Weaver, and Magnolia Petroleum Company pleaded, besides not guilty, innocent purchasers for value without notice.
There is evidence showing that one of the boys of George and Ella Anderson was arrested upon a charge of disposing of mortgaged cotton. George Anderson, as he testified, asked Mr. E. H. Brawley to make a bail bond "to get the boy out of jail," and, to accomplish that purpose, and as "security in case the boy runs off" or forfeited the bail bond, George Anderson and his wife executed the deed to the 80 acres to Mr. Brawley. There are circumstances tending to corroborate the above statement. The evidence, though, in behalf of Mr. Brawley, goes to show an outright purchase of the 80 acres, and not a conveyance as security or interest. Mr. Brawley, who had a grocery and feed store, testified, briefly stated, that he agreed to pay George Anderson for the 80 acres $700 and give him the rent for the year 1929; that he paid, namely, $136.50, the cancellation of the note of N.C. Anderson which was indorsed by George; $66.75, the cancellation of K. S. Mosely note which was indorsed by George Anderson; $56, the individual account of George Anderson; paid to the tax collector $273.27 delinquent taxes due by George Anderson; $78.50, being the value of the mortgaged property disposed of by the son of George Anderson; $20 cash to George Anderson; and groceries — all aggregating $700. Ella Anderson, the wife, did not testify. The jury made a finding upon the conflicting evidence which is conclusive upon this court.
There is further evidence tending to show that George Anderson worked the land in 1929, rent free, as agreed in the sale that he should do, and his son, N.C. Anderson, worked the land in 1930 as the tenant of, and paying rent to, E. H. Brawley. There is evidence tending to show a contrary situation, and that N.C. Anderson was the tenant of, and paying rent to, George Anderson.
The following are the issues submitted in this case to the jury and the answers made thereto:
"1. Do you find from a preponderance of the evidence in this case that at the time the instrument dated December 1, 1928, from George and Ella Anderson to E. H. Brawley was executed, said George and Ella Anderson were using and occupying the land in question as their homestead?" Answer: "Yes."
"5. Do you find from a preponderance of the evidence in this case that the instrument dated December 1, 1928, from George and Ella Anderson to E. H. Brawley was intended by the parties to it, when the same was executed, to secure an indebtedness of George Anderson to said E. H. Brawley, or to protect said Brawley against a money liability?" Answer: "No."
"9. Do you find from a preponderance of the evidence in this case that after the execution of the instrument by George and Ella Anderson to E. H. Brawley on December 1, 1928, and down to the present time, George Anderson and Ella Anderson have continued to use and occupy said land, by themselves and their tenants, as a part of their home?" Answer: "No."
"12. Do you find from a preponderance of the evidence in this case that at the time E. H. Brawley executed and delivered the mineral lease to Donald W. Moore, or prior thereto, he informed said Donald W. Moore that George Anderson and his wife had previously executed a mineral lease on the land in controversy to B. P. Seay?" Answer: "Yes."
The findings of the jury upon issues 1 and 5 are approved, and we here adopt such answers as findings of fact that the conveyance from George Anderson and wife to E. H. Brawley of date December 1, 1928, was an absolute sale and was not intended and understood by the parties as a mortgage of the 80 acres of the homestead tract of land. The findings of the jury upon issue No. 9 is approved, and such answer is here adopted as a finding of fact that George Anderson and wife used and cultivated the 50 acres in 1929 rent free under agreement that it should be done in the sale in December, 1928, and that N.C. Anderson used and cultivated the land in 1930 as a tenant of E. H. Brawley, and that George Anderson and wife did not use and cultivate the land since December 1, 1928, as a part of their home. The findings of the jury upon issue No. 12 is approved, and the answer made is here adopted as a finding of fact.
In keeping with the verdict of the jury, the court entered judgment as is here set out. The plaintiffs George and Ella Anderson recovered 14 acres of R. C. Barnwell, this being out of the 50-acre tract conveyed by the bank to R. C. Barnwell, and being the part not in conflict with the 80-acre tract deeded to E. H. Brawley. This recovery by the plaintiffs was made subject to the leasehold estate of the Mullendore Trust Company and Thomas N. Berry and subject to the estate in the minerals acquired by Donald W. Moore, R. Jungbecker and B. P. Seay. The defendant Donald W. Moore recovered an undivided one-half mineral interest in 14.5 acres of land out of the 45.5-acre (Barnwell) tract, less the mineral interest decree to Jungbecker in said tract, and the defendant Jungbecker recovered an undivided one-ninth mineral interest in said 14 acres. The plaintiff, N. P. Seay, recovered an undivided one-half interest in said 14 acres out of the 45.5-acre tract subject to the mineral interests of the Mullendore Trust Company and Thomas N. Berry.
The defendant Brawley recovered against the plaintiffs George and Ella Anderson, Cranfill-Reynolds Company, and B. P. Seay the two tracts aggregating 80 acres. The recovery, however, was subject to the leases in favor of Jake L. Hamon, Joseph M. Weaver, and Magnolia Petroleum Company. The defendants Hamon, Weaver and Magnolia Petroleum Company recovered a leasehold estate in said 80 acres of the Brawley tract, and this recovery was against all of the other parties to the suit. The defendants Mullendore Trust Company and Thomas N. Berry recovered a leasehold estate against all of the defendants in the 14 acres, title to which was recovered by George and Ella Anderson.
The plaintiffs excepted to the judgment, and seek to have the same revised to the appellate court.
Andrews, Streetman, Logue Mobley, of Houston, and T. B. Stinchcomb, of Longview, for plaintiffs in error.
Wynne Wynne, of Longview, C. E. Florence, of Gilmer, Walace Hawkins, of Dallas, and Le Roy Paddock, of Tyler, for defendants in error.
There is duly and fully presented for decision the points in view, in effect, that those defendants claiming a right and interest to oil, by lease and deed, in the 50-acre tract may not in the circumstances proven take or obtain the right or legal estate in the oil interests in the land as against the plaintiffs having a recorded legal title either (1) as purchasers of the property without notice for value, or (2) by estoppel. The defendant Donald W. Moore and like named defendants claim interest and rights, not in the surface, but in the oil and minerals under the 50-acre tract, and trace their interests and rights to the oil and minerals through the lease and conveyance from R. C. Barnwell on January 5, 1931, and back to the conveyance of February 27, 1925, which was duly recorded, from George Anderson and Ella Anderson to the Rembert National Bank. The findings of the jury must be taken, as we conclude, as establishing as a fact that the conveyance by George Anderson and Ella Anderson of the 50-acre tract made on February 27, 1925, to the Rembert National Bank was not an outright sale, was intended as a mortgage, and that R. C. Barnwell, who subsequently acquired the land by deed from the bank, had actual notice or knowledge of the prior fact affecting the transaction between the bank and the Andersons. There is no doubt, as the legal consequence of such findings of the jury, that both of the conveyances mentioned, to the bank and to R. C. Barnwell, would be rendered invalid and ineffectual to operate as a conveyance of the land as between the said parties; the land being, as affirmatively proven, a part of the established and existing homestead tract of George and Ella Anderson. Article 16, § 50, Constitution; Inge v. Cain, 65 Tex. 75; Hardie Co. v. Campbell, 63 Tex. 292; Musick v. O'Brien (Tex.Civ.App.) 102 S.W. 458, and other cases; Speer on Marital Rights, § 480. The plea of homestead would conclusively prevail over the conveyance to R. C. Barnwell, because he took the land, as established, with notice or knowledge concerning the prior fact affecting the transaction between the bank and the Andersons. Forbes v. Thomas (Tex.Civ.App.) 51 S.W. 1097; Bludworth v. Dudley (Tex.Civ.App.) 173 S.W. 561; and other cases. And, as further conclusively established by the evidence, George Anderson and Ella Anderson on September 10, 1930, executed a mineral lease to B. P. Seay covering the 50-acre tract, and on September 27, 1930, executed a mineral deed to Palmer Bradley to an undivided interest in oil under land covering a part of the 50-acre tract. These two instruments were duly filed for record in the county clerk's office on September 11, 1930, and September 27, 1930, respectively. It was thereafter and of date January 5, 1931, that both the mineral lease and the mineral deed were executed by R. C. Barnwell to Donald W. Moore and the other defendants. In virtue of the recording acts, these prior recorded conveyances would prevail because the defendants would be legally chargeable with constructive notice, and they would be cut off from asserting any rights against the plaintiffs having a valid legal title. Articles 6627, 6646, R.S.; Gaston Thomas v. Dashiell, 55 Tex. 508; Copelin v. Shuler (Tex.Sup.) 6 S.W. 668; and other cases; 39 Cyc. pp. 1648-1651; 46 C.J. § 46, p. 550; 27 R.C.L. § 432, p. 669; 2 Pomeroy, Eq. Jur. (4 Ed.) §§ 604, 655.
The intention of the recording acts is to compel every person receiving conveyances of real property to place such an instrument of record, not only that he may thereby protect his own rights, but also those of all others who may afterwards seek to acquire an interest in the same property. In this manner a person about to deal with respect to a tract of land may be able to discover, or find the means of discovering, as was designed the public deed records should afford, every existing and outstanding title or interest in it which could affect the rights of a bona fide purchaser. The law intends to and does favor the recorded title, and any conveyance which is duly recorded must thereby obtain all the benefits which depend upon or flow from the fact of registration. Under the settled rules generally applicable to such situations, Donald W. Moore and the other defendants may predicate the right to take or obtain a legal estate or hold the oil interest claimed freed from the legal rights of George and Ella Anderson as well as the other plaintiffs in the case only that they acquired their rights without notice of the duly registered interests or claims of the plaintiffs in the same property. This involves, not a question of title, but a question of notice. It is a general rule most clearly established that a person who acquired a legal or equitable interest in property, even for a valuable consideration. but with notice that the same property is already affected by a legal or equitable claim in favor of another, does not take the property freed from the claim or interest of such other person. By affirmative finding of the jury, Mr. Donald W. Moore at the time of the agreement of the lease by E. H. Brawley was personally informed by Mr. Brawley of the fact of the execution by George Anderson and Ella Anderson to B. P. Seay of the mineral lease. Thus Mr. Moore, as a fact, had information tending to show the existence of the fact of a prior right in Mr. Seay in conflict with the interest he was seeking to obtain. And as to all the defendants the circumstance appears sufficient at least to excite inquiry that George Anderson and Ella Anderson were in long continuous actual possession of the premises, as though no sale had been made since the deed in 1925 to the Rembert National Bank. As observed in Davis v. Cox (Tex.Civ.App.) 176 S.W. 931, 932, as applicable to a grantor remaining in possession, "he knew that in Texas when a sale of land is made, the vendee usually does not permit the vendor to remain in possession as though no sale had been made for nearly four years."
The only exception relied upon as relieving the effect of George Anderson and wife's maintaining the long continuous actual occupancy of the land for six years after having executed the conveyance to the Rembert National Bank, and which was put of record, is the case of Eylar v. Eylar, 60 Tex. 315, and the other cases following it. The defendants in the present case were exhibited and read the deed from George and Ella Anderson to the Rembert National Bank, and the certified abstract showing the deed, and relied upon this recorded deed in the purchase of the estate in the land. They did not make personal examination of the deed record. It is believed that constructive notice arising by the long actual continued occupancy of the land by George Anderson and wife from the date of their conveyance to the Rembert National Bank in 1925 including the date of conveyances to Donald W. Moore by R. C. Barnwell on January 5, 1931, being about six years, was a circumstance inconsistent with possession merely by sufferance and sufficient to put the purchaser on inquiry of the rights of George Anderson and wife; that the inquiry if prosecuted sufficiently would have disclosed the rights of George Anderson and the other plaintiffs, their conveyances having been previously put of record. Therefore constructive notice plays the most important part in the situation shown by the facts. In the case of Eylar v. Eylar, supra, it was held that possession merely put on inquiry and that inquiry is prosecuted sufficiently when the purchaser examines the records and finds a deed from the party in possession. Although in the Eylar Case J. F. Eylar and wife had executed an absolute warranty deed to O. A. Eylar, and which was duly registered, yet there was no subsequent conveyance of the property by J. F. Eylar and wife and duly placed of record in divestiture of their title and possession. And further in that case it does not appear that there was some six years' continued possession by J. F. Eylar and wife after the date of the deed to O. A. Eylar. In such respects that case stands upon different grounds from the case now before us for consideration. It was purely in such circumstances as there existed that the court held that, although the vendor remained in possession of the premises, yet the purchaser could rely upon the public records and was not bound to inquire further as to the rights of the grantors in the property. In the absence, as was the case, of the factual element of a long-continued occupancy of the land and also of a subsequent recorded conveyance from J. F. Eylar and wife antagonistic to their first recorded deed, strangers about to deal for the property could fairly and in good faith have assumed and reasonably have referred the continued possession of J. F. Eylar and wife of the property to merely sufferance for the time being of their grantee. It is not believed that it was intended to have the rule in the Eylar Case extend to a situation as is shown in the present case. In the present case, as stated, George Anderson and wife maintained a long-continued possession of the land and did place of record other conveyances in divestiture of their title and possession of oil interests in the land. The provisions of these recorded instruments were wholly inconsistent and not consistent with any right to occupy the premises under the record of the prior recorded deed to the Rembert National Bank or merely by sufferance of the bank or R. C. Barnwell. There was the long interval of time of six years between such recorded conveyances and the ones to the bank and R. C. Barnwell, relied on as a divestiture of the title and possession of the Andersons. All these factual elements would, as could reasonably be assumed and fairly considered, destroy the effect of possession under the deed to the Rembert National Bank and to R. C. Barnwell as being by mere sufferance or permission of such grantee. Therefore the possession of George Anderson and wife and the recorded deeds would upon inquiry and examination have fully disclosed the rights of George Anderson and wife and the other plaintiffs. In this conclusion the plaintiffs would be entitled to recover against these particular defendants, and judgment should accordingly so be entered.
It is next urged that the recovery by the defendants, as respects the 80-acre tract, is contrary to the preponderance of the evidence. It is believed that the evidence is sufficient to warrant the finding by the jury that the conveyance of George Anderson and Ella Anderson was an outright sale and not in fact intended as a mortgage of the land. Being in fact a valid deed, passing the title, all the land covered by that deed would pass to and be acquired by the purchaser, although the conveyance in evidence to the bank and R. C. Barnwell overlaps the deed to E. H. Brawley.
Evidence was offered by the plaintiffs as tending to explain that the deeds from Anderson and wife were in fact mortgages. Upon objection to the evidence as against the defendants, the court at the time in sustaining the objection orally stated to the jury that, "Gentlemen of the Jury, in the testimony these two bankers have given as to conversations, you will not consider this testimony, if you consider it at all, as against the Mullendore Trust Company, Thomas N. Berry and Donald W. Moore." It is urged that there was error in so doing because (1) it was not done in writing, and (2) was upon the weight of evidence in limiting the effect of testimony. The evidence was not admissible for all purposes but in limitation against some of the parties. It is thought the admonitory statement to the jury, as it merely was, in respect to the ruling upon the evidence, was not erroneous, authorizing a reversal of the judgment.
We have carefully considered all the other assignments of error, and think they should be overruled as not warranting a reversal of the judgment.
The judgment as respects the recovery by the Mullendore Trust Company, Thomas N. Berry, Donald W. Moore, and R. Jungbecker is so far modified as to deny each of them any recovery in a leasehold estate or estate in the minerals in the 50-acre tract in suit. The judgment of the trial court in all other respects and as to all other parties will be affirmed. The judgment is modified, and as modified is in all things affirmed. The plaintiffs will pay one-half the costs of appeal, and the defendants above specially named will pay, jointly and severally, one-half the costs of appeal.