"If, discarding all adverse evidence and giving credit to all evidence favorable to the plaintiff, and indulging in every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff," then it should be submitted to a jury, and there would be evidence to support their verdict. The same rule has been announced in Cartwright v. Canode, 106 Tex. 507, 171 S.W. 696, and in Downs v. Stevenson, 56 Tex. Civ. App. 215, 119 S.W. 317, in which the court says: "If there be any fact or circumstance tending to show that he is not a purchaser in good faith, the question is one of fact for the jury, and cannot be assumed by the court."

Hahn v. Love, 321 S.W.3d 517, 527 (Tex.App.-Houston [1st Dist.] 2009, pet. denied) ("A transferee who takes property with knowledge of such facts as would excite the suspicions of a person of ordinary prudence and put him on inquiry of the fraudulent nature of an alleged transfer does not take the property in good faith and is not a bona fide purchaser."). Cf. Downs v. Stevenson, 56 Tex. Civ.App. 211, 119 S.W. 315, 317 (1909, writ ref'd) (good faith of party claiming bona fide purchaser status is "measured by his intent at the time" the subsequent purchaser's interest was acquired). 2.

He may not be an innocent purchaser under facts which show that he has closed his eyes and speculated on the absence of the proper record evidence of claims not actually known to him but under the circumstances suspected by him to exist, and thus acquire a title through the aid of registration law which he has reason to believe his grantor does not have. Houston Oil Co. v. Hayden, 104 Tex. 182, 135 S.W. 1149; Downs v. Stevenson, 56 Tex. Civ. App. 211, 119 S.W. 315, 317. But this is not intended to deprive a purchaser of the rightful protection of the registration law, and to impute to him bad faith it must be shown that he is in fact acquainted with some circumstance which would put a prudent man upon inquiry leading to a knowledge of the right or title in conflict with that which he is about to purchase.

It is the province of the jury to say whether such a transaction is bona fide. Houston E. W. T. Ry. Co. v. Runnels, 92 Tex. 307, 47 S.W. 971; Forster v. Enid (Tex.Civ.App.) 176 S.W. 788; Douglass v. Lockhart (Tex.Civ.App.) 168 S.W. 382; Smith v. Word (Tex.Civ.App.) 248 S.W. 734; Thos. Goggan v. Synnott (Tex.Civ.App.) 134 S.W. 1184; Poulter v. Miller (Tex.Com.App.) 221 S.W. 965; Goolsby v. Manning (Tex.Civ.App.) 270 S.W. 936; Downs v. Stevenson, 56 Tex. Civ. App. 211, 119 S.W. 315; Mee v. Carlson, 22 S.D. 365, 117 N.W. 1033, 29 L.R.A. (N. S.) 359. "Failure to make inquiry may be considered under many circumstances as evidence of bad faith on the part of the purchaser of the note."

25); Carpenter v. Anderson, 33 Tex. Civ. App. 491, 77 S.W. 291 ($2,500-$53.33); Parks v. Worthington, 101 Tex. 505, 109 S.W. 909 ($2,500-$50); Downs v. Stevenson, 56 Tex. Civ. App. 211, 119 S.W. 315 ($2,130-$50); Davis v. Bell, 60 Tex. Civ. App. 370, 128 S.W. 658 (between $800 and $1,900-$10); Rowland v. Klepper (Tex.Civ.App.) 189 S.W. 1033 ($3,000-$40); Goolsby v. Manning (Tex.Civ.App.) 270 S.W. 936 ($8,000 to $12,000-$10); Chesnut v. Specht (Tex.Civ.App.) 272 S.W. 830 ($6,000-$90). It is insisted by appellant that appellee did not come with clean hands; that he knowingly clothed McManus with the apparent absolute title to this property, and it would be inequitable to permit him now to assert his vendor's lien as against appellant.

It is the law that appellant cannot try his case upon one theory in the lower court and upon a different theory in the appellate court. Downs v. Stevenson, 56 Tex. Civ. App. 211, 119 S.W. 315; Haywood v. Scarborough (Tex.Civ.App.) 102 S.W. 469; Bank v. Freeman, 107 Tex. 523, 181 S.W. 187; Kistler v. Latham (Tex.Com.App.) 255 S.W. 983. But before that proposition can be successfully invoked the facts to sustain it must be found in the record.

If the evidence shows that he had the right to sell and that Young paid value in good faith, then the latter is entitled to protection without any regard to whether Atkins in selling also acted in good faith. The inquiry is limited to the bona fides of Young. Downs v. Stevenson, 56 Tex. Civ. App. 211, 119 S.W. 315. As affecting the issue of good faith, Young had the right to accept, as true, the recitals in the deed from Bailey to Atkins, that $1,200 had been paid in cash.

If not, in the absence of submitting any issue thereon, it will be presumed that the trial court, in support of his judgment, found that such conveyance was lawfully and legally made in good faith for a valuable consideration and vested a good title. This presumption could only be overturned by appellant showing facts to the contrary, which was not done, because the burden to do so was on him. Downs v. Stevenson, 56 Tex. Civ. App. 211, 119 S.W. 315; Ackers v. Fazier (Tex.Civ.App.) 220 S.W. 426; Niles et al. v. Houston Oil Co. (Tex.Civ.App.) 191 S.W. 748; Moran v. Wheeler, 87 Tex. 179, 27 S.W. 54; Turner v. Cochran, 94 Tex. 480, 61 S.W. 923; Baldwin v. Root, 90 Tex. 546, 40 S.W. 3; Lindsay v. Freeman, 83 Tex. 259, 18 S.W. 727. The property was an improved homestead.

The recital that the consideration to the extent of $3,500 is paid is in effect, and tantamount to, an acknowledgment of the receipt thereof, and leaves nothing to arouse any suspicion or inquiry in subsequent purchasers as to whether or not such consideration in fact passed. The deed is absolute on its face, and subsequent purchasers were entitled to accept its express recitals is true. Downs v. Stevenson (Tex.Civ.App.) 119 S.W. 318. From these conclusions and the findings of the jury, it clearly appears that A. G. Earle and wife were innocent purchasers for value of the land, and entitled to recover both title and possession against the Welborns.

Moreover, by his conduct throughout the trial, appellant invited the error, if any, in trying the issue of business homestead, and is precluded from insisting upon it here. The following cases have settled these principles: Panhandle Grain Elevator Co. v. Dowlin (Tex.Civ.App.) 247 S.W. 873; Kistler v. Latham (Tex.Com.App.) 255 S.W. 983; Lemm v. Miller (Tex.Civ.App.) 245 S.W. 90; Southern Pacific Railway Company v. Kennedy, 9 Tex. Civ. App. 232, 29 S.W. 394; Kuhn v. Shaw (Tex.Civ.App.) 223 S.W. 343; Delaware Underwriters v. Brock, 109 Tex. 425, 211 S.W. 779; Elcan v. Childress, 40 Tex. Civ. App. 193, 89 S.W. 84; Gutheridge v. Gutheridge (Tex.Civ.App.) 161 S.W. 892; Boone v. Clark (Tex.Civ.App.) 214 S.W. 607; Gladys City Oil Co. v. Right of Way Oil Co. (Tex.Civ.App.) 137 S.W. 171; Id., 106 Tex. 94, 157 S.W. 737, 51 L.R.A. (N. S.) 268; T. N. O. Ry. Co. v. Geiger, 55 Tex. Civ. App. 1, 118 S.W. 179; Lumsden v. Jones (Tex.Civ.App.) 205 S.W. 375; Downs v. Stevenson, 56 Tex. Civ. App. 211, 119 S.W. 315. The appellant seeks to enjoin the sale of property which prima facie is subject to execution.