Opinion
No. 4022.
June 11, 1931. Rehearing Denied June 18, 1931.
Appeal from District Court, Fannin County; Geo. P. Blackburn, Judge.
Suit by Bland Smith and others against Myrtle Wofford and others. From the judgment, plaintiffs appeal.
Affirmed.
In a partition suit by appellee Myrtle Wofford and others against Mrs. M. J. Whisenhunt and others, commenced in the district court of Fannin county June 1, 1925, numbered 10225 on the docket of said court, judgment was, on July 25, 1928, rendered vesting the title to 67 acres of the J. Delgardo and W. R. Price surveys of land in Hunt county in said Myrtle Wofford, J. H. Wofford, Verner Lou Reed, Dewey Wells, and appellees H. A. Cunningham and R. T. Lipscomb. Pending said suit, to wit, on July 10, 1928, by a deed of that date, said Mrs. M. J. Whisenhunt conveyed 33 1/3 acres of the 67-acre tract to appellant Bland Smith. The instant suit was by said Bland Smith, O. Roberts, Charley Roberts, Harry Roberts, and Smith-Moore-Williams, a corporation, as plaintiffs, appellants here, against said Myrtle Wofford, J. H. Wofford, Verner Lou Byrd (nee Reed), and her husband, Bill Byrd, Dewey Wells, H. A. Cunningham, and R. T. Lipscomb, as defendants, appellees here. It was to try the title to the 33 1/3 acres of land referred to, and resulted in a judgment denying appellants any of the relief they sought, and in favor of appellees for costs and removing a cloud cast on their title to the land by the deed from Mrs. M. J. Whisenhunt to appellant Bland Smith. It appeared from testimony heard at the trial that said deed to appellant Bland Smith was intended to operate as a conveyance of the title to him on his own account and as trustee of his coappellants. As the trial court viewed the case, the only controverted issue of fact presented by the evidence was one as to whether appellant O. Roberts, who acted for himself and the other appellants in the transaction resulting in the making of the deed by Mrs. M. J. Whisenhunt, had knowledge, or was chargeable with knowledge, of the fact that said suit No. 10225 was pending as stated above at the time said Mrs. M. J. Whisenhunt made the deed as stated. On special issues submitted to them, the jury found, first, that said O. Roberts had such knowledge; and, second, that said O. Roberts had "possession of such facts (quoting) as would have put him on notice that the title to said land was in controversy in another lawsuit then pending in this (the Fannin County District) Court, had such facts been investigated by him in the manner a man of ordinary care and prudence placed in the same or similar circumstances would have investigated same."
Allen Reed, of Bonham, for appellants.
Cunningham Lipscomb, of Bonham, for appellees.
The effect, as between the parties thereto, of the judgment in cause No. 10225, referred to in the statement above, was to divest Mrs. M. J. Whisenhunt of any title she had in the land in controversy and to vest same in appellees. That being true, the judgment here appealed from is not erroneous if appellants were bound by the judgment in said cause No. 10225. Appellants insist that judgment was not binding upon them and that the trial court erred when, over their objection, he admitted same as evidence of title in appellees. The ground of the objection was that it appeared the judgment had not been recorded in the office of the county clerk of Fannin county as provided in article 6638, R.S. 1925, and therefore was within the inhibition in said statute that such a judgment not recorded in the county in which land in question was situated should "not be received in evidence in support of any right claimed by virtue thereof." It is held that the statute invoked was only intended for the protection of creditors and innocent purchasers, and that such a judgment is admissible as evidence where, as here, as determined by the jury on sufficient evidence, the objecting party knew or was chargeable with knowledge of the pendency of the suit resulting in the judgment. Russell v. Farquhar, 55 Tex. 355; Baylor v. Tillebach, 20 Tex. Civ. App. 490, 49 S.W. 720; Crow v. Van Ness (Tex.Civ.App.) 232 S.W. 539; Henderson v. Lindley, 75 Tex. 185, 12 S.W. 979; Rodriguez v. Haynes, 76 Tex. 225, 13 S.W. 296; Haines v. West, 101 Tex. 226, 105 S.W. 1118, 130 Am.St.Rep. 839. In their brief appellants say: "The only question involved in the cause after the close of the testimony was a question of law, and not of fact, to-wit, whether or not the failure of the defendants to record their judgment in cause No. 10225 in the records of the County Clerk of Fannin County, Texas, as required by article 6638 of the Revised Statutes precluded them from offering the same in evidence as their defense and claim to the land in controversy." Agreeing with appellants in the statement quoted and having determined the judgment in said cause No. 10225 was admissible as evidence in the instant cause, it follows we think the judgment here appealed from should be affirmed.